Arizona

Will U.S. voters elect lawmakers who represent the actual will of the people?

by

Heather Cox Richardson | Letters from an American

Heather Cox Richardson

April 9, 2024

Yesterday, former president Trump released a video celebrating state control over abortion; today, a judicial decision in Arizona illuminated just what such state control means. With the federal recognition of the constitutional right to abortion gone since the Supreme Court overturned Roe v. Wade, old laws left on state books once again are becoming the law of the land.

In a 4–2 decision, the all-Republican Arizona Supreme Court today said it would not interfere with the authority of the state legislature to write abortion policy, letting the state revert to an 1864 law that bans abortion unless the mother’s life is in danger. “[P]hysicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the decision read.

The court explained: “A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process…. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens.”

The idea that abortion law must be controlled by state legislatures is in keeping with the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. But it’s an interesting spin to say that the new policy is protecting the will of the citizens. 

The Arizona law that will begin to be enforced in 14 days was written by a single man in 1864. 

In 1864, Arizona was not a state, women and minorities could not vote, and doctors were still sewing up wounds with horsehair and storing their unwashed medical instruments in velvet-lined cases. 

And, of course, the United States was in the midst of the Civil War.

In fact, the 1864 law soon to be in force again in Arizona to control women’s reproductive rights in the twenty-first century does not appear particularly concerned with women handling their own reproductive care in the nineteenth—it actually seems to ignore that practice entirely. The laws for Arizona Territory, chaotic and still at war in 1864, appear to reflect the need to rein in a lawless population of men. 

The 1864 Arizona criminal code talks about “miscarriage” in the context of other male misbehavior. It focuses at great length on dueling, for example—making illegal not only the act of dueling (punishable by three years in jail) but also having anything to do with a duel. And then, in the section that became the law now resurrected in Arizona, the law takes on the issue of poisoning. 

In that context, the context of punishing those who secretly administer poison to kill someone, it says that anyone who uses poison or instruments “with the intention to procure the miscarriage of any woman then being with child” would face two to five years in jail, “Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.” 

The next section warns against cutting out tongues or eyes, slitting noses or lips, or “rendering…useless” someone’s arm or leg.

The law that Arizona will use to outlaw abortion care seemed designed to keep men in the chaos of the Civil War from inflicting damage on others—including pregnant women—rather than to police women’s reproductive care, which women largely handled on their own or through the help of doctors who used drugs and instruments to remove what they called dangerous blockages of women’s natural cycles in the four to five months before fetal movement became obvious.

Written to police the behavior of men, the code tells a larger story about power and control. 

The Arizona Territorial Legislature in 1864 had 18 men in the lower House of Representatives and 9 men in the upper house, the Council, for a total of 27 men. They met on September 26, 1864, in Prescott. The session ended about six weeks later, on November 10. 

The very first thing the legislators did was to authorize the governor to appoint a commissioner to prepare a code of laws for the territory. But William T. Howell, a judge who had arrived in the territory the previous December, had already written one, which the legislature promptly accepted as a blueprint.

Although they did discuss his laws, the members later thanked Judge Howell for “preparing his excellent and able Code of Laws” and, as a mark of their appreciation, provided that the laws would officially be called “The Howell Code.” (They also paid him a handsome $2,500, which was equivalent to at least three years’ salary for a workingman in that era.) Judge Howell wrote the territory’s criminal code essentially single-handedly.

The second thing the legislature did was to give a member of the House of Representatives a divorce from his wife. 

Then they established a county road near Prescott.

Then they gave a local army surgeon a divorce from his wife. 

In a total of 40 laws, the legislature incorporated a number of road companies, railway companies, ferry companies, and mining companies. They appropriated money for schools and incorporated the Arizona Historical Society.

These 27 men constructed a body of laws to bring order to the territory and to jump-start development. But their vision for the territory was a very particular one. 

The legislature provided that “[n]o black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to [testify in court] against any white person,” thus making it impossible for them to protect their property, their families, or themselves from their white neighbors. It declared that “all marriages between a white person and a [Black person], shall…be absolutely void.”

And it defined the age of consent for sexual intercourse to be just ten years old (even if a younger child had “consented”). 

So, in 1864, a legislature of 27 white men created a body of laws that discriminated against Black people and people of color and considered girls as young as ten able to consent to sex, and they adopted a body of criminal laws written by one single man.

And in 2024, one of those laws is back in force in Arizona.

Now, though, women can vote.

Before the midterm elections, 61% of Arizona voters told AP VoteCast they believed abortion should be legal in most or all cases, while only 6% said it should be illegal in all cases. A campaign underway to place a constitutional amendment protecting abortion rights on November’s ballot needs to gather 383,923 verified signatures by July; a week ago the campaign announced it already had 500,000 signatures.

It seems likely that voters will turn out in November to elect lawmakers who will represent the actual will of the people in the twenty-first century.

White Declaration of Independence

by

Heather Cox Richardson | Letters from an American

Heather Cox Richardson

October 16, 2022

In an interview this morning with CNN’s Dana Bash, Arizona Republican nominee for governor Kari Lake refused to say that she would accept the results of the upcoming election– unless she wins. Former president Trump said the same in 2020, and now more than half of the Republican nominees in the midterm elections have refused to say that President Joe Biden won the 2020 election because, they allege, there was voter fraud. This position is an astonishing rejection of the whole premise on which this nation was founded: that voters have the right to choose their leaders.

That right was established in the Declaration of Independence separating the 13 British colonies on the North American continent from allegiance to King George III. That Declaration rejected the idea of social hierarchies in which some men were better than others and should rule their inferiors. Instead, it set out a new principle of government, establishing that “all men are created equal” and that governments derive “their just power from the consent of the governed.”

Republicans’ rejection of the idea that voters have the right to choose their leaders is not a new phenomenon. It is part and parcel of Republican governance since the 1980s, when it became clear to Republican leaders that their “supply-side economics,” a program designed to put more money into the hands of those at the top of the economy, was not actually popular with voters, who recognized that cutting taxes and services did not, in fact, result in more tax revenue and rising standards of living. They threatened to throw the Republicans out of office and put back in place the Democrats’ policies of using the government to build the economy from the bottom up.

So, to protect President Ronald Reagan’s second round of tax cuts in 1986, Republicans began to talk of cutting down Democratic voting through a “ballot integrity” initiative, estimating that their plans could “eliminate at least 60–80,000 folks from the rolls” in Louisiana. “If it’s a close race…, this could keep the Black vote down considerably,” a regional director of the Republican National Committee wrote.

When Democrats countered by expanding voting through the National Voter Registration Act of 1993, more commonly known as the Motor Voter Act, a New York Times writer said Republicans saw the law “as special efforts to enroll core Democratic constituencies in welfare and jobless-benefits offices.” While Democrats thought it was important to enfranchise “poor people…people who can’t afford cars, people who can’t afford nice houses,” Republicans, led by then–House minority whip Newt Gingrich of Georgia, predicted “a wave of fraudulent voting by illegal immigrants.”

From there it was a short step to insisting that Republicans lost elections not because their ideas were unpopular, but because Democrats cheated. In 1994, losing candidates charged, without evidence, that Democrats won elections with “voter fraud.” In California, for example, Senator Dianne Feinstein’s opponent, who had spent $28 million of his own money on the race but lost by about 160,000 votes, said on “Larry King Live” that “frankly, the fraud is overwhelming” and that once he found evidence, he would share it to demand “a new election.” That evidence never materialized, but in February 1995 the losing candidate finally made a statement saying he would stop litigating despite “massive deficiencies in the California election system,” in the interest of “a thorough bipartisan investigation and solutions to those problems.”

In 1996, House and Senate Republicans each launched yearlong investigations into what they insisted were problematic elections, with Gingrich, by then House speaker, telling reporters: ‘“We now have proof of a sufficient number of noncitizens voting that it may well have affected at least one election for Congress,” although the House Oversight Committee said the evidence did not support his allegations.

In the Senate, after a 10-month investigation, the Republican-dominated Rules Committee voted 16 to 0 to dismiss accusations of voter fraud in the election of Louisiana senator Mary Landrieu that cost her $500,000 in legal fees and the committee $250,000. Her opponent, whose supporters wore small socks on their lapels with the words “Don’t Get Cold Feet. Sock It To Voter Fraud,” still refused to concede, saying that “the Senate has become so partisan it has become difficult to get to the truth.”

There was nothing to the cases, but keeping them in front of the media for a year helped to convince Americans that voter fraud was a serious issue and that Democrats were winning elections thanks to illegal, usually immigrant, voters. Amplified by the new talk radio hosts and, by the mid-1990s, the Fox News Channel, Republicans increasingly argued that Democrats were owned by “special interests” who were corrupting the system, pushing what they called “socialism”—that is, legislation that provided a basic social safety net and regulated business—on “real” Americans who, they insisted, wanted rugged individualism. If Democrats really were un-American, it only made sense to keep such dangerous voters from the polls.

In 1998, the Florida legislature passed a law to “maintain” the state’s voter lists, using a private company to purge the voter files of names believed to belong to convicted felons, dead people, duplicates, and so on. The law placed the burden of staying on the voter lists on individuals, who had to justify their right to be on them. The law purged up to 100,000 legitimate Florida voters, most of them Black voters presumed to vote Democratic, before the 2000 election, in which Republican candidate George W. Bush won the state by 537 votes, giving him the Electoral College although he lost the popular vote.

Voting restrictions had begun, but they really took off after the Supreme Court’s 2013 Shelby County v. Holder decision gutted the provision of the 1965 Voting Rights Act requiring preclearance from the federal government before states with a history of racial discrimination changed their election laws. Now, less than a decade later, Republican Florida governor Ron DeSantis has been open about suppressing Democratic votes, easing voting restrictions for three reliably Republican counties devastated by Hurricane Ian but refusing to adjust the restrictions in hard-hit, Democratic-leaning Orange County.

Open attacks on Democrats in the lead-up to this year’s midterms justify that voter suppression. Last week, Senator Tommy Tuberville (R-AL) suggested that Black Americans are criminals who “want to take over what you got,” and Republican candidates are running ads showing mug shots of Black men. Today, Trump chided American Jews for not sufficiently appreciating him; he warned them to “get their act together…[b]efore it’s too late.” Republican lawmakers have left those racist and antisemitic statements unchallenged.

Those attacks also justify ignoring Democratic election victories, for if Democratic voters are undermining the country, it only makes sense that their choices should be ignored. This argument was exactly how reactionary white Democrats justified the 1898 coup in Wilmington, North Carolina, when they overthrew a legitimately elected government of white Populists and Black Republicans. Issuing a “White Declaration of Independence,” they claimed “the intelligent citizens of this community owning 95 percent of the property” were taking over because those elected were not fit to run a government. Like the Wilmington plotters, Trump supporters insisted they were defending the nation from a “stolen” election when they attacked the Capitol on January 6, 2021, to cancel the results of the 2020 Democratic victory.

It was not so very long ago that historians taught the Wilmington coup as a shocking anomaly in our democratic system, but now, 124 years after it happened, it is current again. Modern-day Republicans appear to reject not only the idea they could lose an election fairly, but also the fundamental principle, established in the Declaration of Independence, that all Americans have a right to consent to their government.