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Advocates have been remembering immigrants who’ve died while in federal immigration custody in Día de Muertos vigils across the country. The holiday, known in English as Day of the Dead and widely celebrated both in Latin America and the U.S., is rooted in indigenous traditions of Mesoamerica and honors the memory of loved ones who have died.

Altars created as part of the observance commonly feature marigolds, incense, candles, and photographs of the deceased. One such altar was seen outside the privately operated Otay Mesa Detention Facility in California last week, where Carlos Ernesto Escobar Mejía had been detained. In May 2020, he was the first immigrant to die of COVID-19 while in Immigration and Customs Enforcement (ICE) custody. He’d lived in the U.S. for four decades.

“ICE deprives thousands of people of liberty each day in conditions that give rise to systemic abuse & rampant medical neglect,” American Friends Service Committee (AFSC) San Diego tweeted last week. “Otay Mesa Detention Center was site of the 1st COVID-19 related death in ICE detention in the US when Carlos Ernesto Escobar Mejia passed away in 2020.” Yet Escobar Mejía’s death was entirely preventable, because ICE could have released the medically vulnerable man to shelter at home, but didn’t.

“These facilities don’t care about the people or the facts of their lives,” one of his sisters told The Guardian last year. “These are private institutions making money off of immigrants.”

AFSC San Diego said a government watchdog “issued a report outlining violations of ICE’s own detention standards that compromised the health, safety, & rights of people in this facility. Medical negligence has led to the death of other immigrants at Otay, including Nebane Abienwi in 2019.” Abienwi, an asylum-seeker from Cameroon, died from a brain hemorrhage after being detained at Otay Mesa in 2019.

Like advocates in Día de Muertos vigils elsewhere, the Quaker social justice organization urged the Biden administration to act to shut down these deadly immigration detention facilities. Detention Watch Network and the We Are Home Campaign said in a release received by Daily Kos that five immigrants have died in ICE custody since the president took office. “This follows ICE’s highest death toll in 15 years with 21 deaths occurring in FY 2020.”

“Medical standards developed and implemented by ICE have proven inadequate time and again leading to preventable deaths of people in their custody,” Detention Watch Network and the We Are Home Campaign continued. They pointed to numerous reports that “have found that ICE medical care has contributed to numerous deaths and that the agency lacks urgency and transparency when reporting deaths in its custody.” One such report noted the case of Raul Ernesto Morales-Ramos, whose cancer went unaddressed by ICE for years. “Throughout this time, Morales-Ramos repeatedly begged for care,” the report said. 

In Washington, D.C., advocates remembered a number of transgender and gay asylum-seekers who died in custody or soon after being released from custody. Like Morales-Ramos, a number had been subjected to medical neglect while in custody.

“Our community gathered to honor the lives of Victoria Arellano, Roxsana Hernandez, Johana Medina, and Pablo Sánchez who died because of ICE negligence,” tweeted Familia: Trans Queer Liberation Movement. The group said Sánchez, who was HIV-positive, “was forced into detention where his health quickly deteriorated due to medical neglect. ICE was fully aware of Pablo’s medical fragility and failed to release him so that he could obtain life-saving interventions.”

Washington Blade notes the repeated calls from lawmakers urging an end the detention of trans people and people with HIV. “There are grave concerns regarding ICE safely detaining transgender individuals,” legislators wrote in June. “Even when ICE has endeavored to set up specific detention units tailored to comply with the requirements of its own 2015 guidance on the detention of transgender individuals, its efforts have failed.” 

The fact remains that ICE is inherently threatening to human beings, especially when it comes to particularly vulnerable individuals. We know this because ICE has a documented history of intentional neglect.

While President Biden’s criminal justice reform platform pledged to “make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants,” the expansion of private immigration prisons has continued under his administration. But it is not too late. The administration can still cancel the contracts and begin to usher in a more humane immigration system.

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On Monday, the U.S. Supreme Court declined to hear a case, Dignity Health, Inc. v. Minton, concerning Mercy San Juan Medical Center, a Catholic hospital in the Sacramento, California area, which refused to let a gender-affirming procedure for a patient living with gender dysphoria be performed in its facility, as reported by Reuters. The justices declined to hear the appeal without comment. This means that the ruling from the lower court stands.

Perhaps unsurprisingly, Clarence Thomas, Samuel Alito, and Neil Gorsuch—all conservative judges—said they would have heard the case. 

The American Civil Liberties Union (ACLU) and Covington & Burling LLP represent Evan Minton in this case. In a brief filed by the ACLU, the organization argues that Minton alleges he was “intentionally discriminated against” because of his gender identity. “He alleges that he was denied the same procedure that Dignity Health permits many other non-transgender patients to undergo, at the same facility, in a host of other, comparable circumstances,” the brief states.

And from the hospital’s perspective? The hospital argues it does not discriminate against trans patients, while Minton, who is a trans man seeking a hysterectomy as part of his treatment plan, argues otherwise based on state law. Minton says the hospital did originally schedule his surgery back in 2016, but canceled it after Minton shared with a nurse (two days before his surgery was scheduled) that he’s transgender. According to Minton’s legal filing, the hospital does perform hysterectomies—just for other reasons.

The hospital says it refuses to perform certain procedures it feels are contrary to Catholic ideology (like abortion, for example). But if the hospital is willing to schedule hysterectomies for one medically necessary reason—let’s say fibroids—and won’t for another medically necessary reason—gender-affirmation is life-saving care, remember—that’s a problem. 

Minton’s physician was ultimately able to still perform the surgery but at a different facility (a Methodist hospital in the same network). As The Washington Post notes, the surgery happened after the initial refusal got media attention. Minton also had his physician on his side, which is something not all marginalized folks can count on. 

At first, Minton sued the hospital in state court, where a trial judge ruled in favor of the hospital. According to the Associated Press, the court sided with the hospital in that the delay for the surgery (which was three days) was not a refusal of “full and equal” health care access. In 2019, however, an appeals court rejected the hospital’s argument about its core religious beliefs, essentially agreeing that providing gender-affirming care for a trans patient is not stomping on their constitutional right to freedom of religion and free speech.

So, in the short term, the Supreme Court refusing to hear the challenge is ultimately a win for Minton (and trans folks in general) and a loss for the hospital. 

“Since Dignity Health turned me away for being transgender,” Minton shared in a response to the Supreme Court’s decision per an ACLU press release. “I’ve had multiple medical emergencies and I can’t stand to go to my neighboring Dignity Hospital because of the discrimination I was put through,” Minton says. In order to avoid going to the hospital, he at one point called his physician and had them guide him through a procedure he chose to perform on himself. He went on to say he applauds all trans folks and that this should “not be our private pain and shame.”

“We deserve health care, we deserve restroom access, we deserve to play on sports teams, we deserve better,” Minton added. “With my community by my side, I look forward to carrying on in this fight for justice.”

You can check out a 2019 interview with Minton below, where he shares more about his experience and the importance of this surgery for him.

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The Center for Disease Control and Prevention’s (CDC) advisory panel meets Tuesday to discuss COVID-19 vaccinations for children aged 5 to 11, following the Food and Drug Administration’s (FDA) emergency use authorization of the Pfizer vaccine on Friday. Assuming the CDC panel recommends the vaccine, CDC Director Rochelle Walensky is likely to sign off quickly, allowing vaccinations for elementary-age children to start this week. But vaccination appointments are likely to be hard to come by this week with the program “running at full strength” starting in the second week of November, according to Jeffrey Zients, the White House pandemic response coordinator.

So if you’re a parent who is eager to get your child vaccinated as soon as possible, you can look forward to a return of the blood sport of appointment-hunting last spring. (By “blood sport” I mean anxiously clicking refresh on vaccination websites at all hours of the day and night.)

As soon as the FDA authorized use of the Pfizer vaccine, “We began the process of moving 15 million doses from Pfizer’s freezers and facilities to distribution centers,” Zients said at a White House briefing. The White House has lined up around 20,000 vaccination sites for children, shifting the focus from the mass vaccination sites that prevailed in the early days of the effort to vaccinate adults to children’s hospitals and pediatricians’ offices as well as pharmacies and health clinics. Doses will be going out every day for the next week, Zients said.

The extremely good news is this: “We’re in great shape on supply,” according to Zients. “We have more than enough vaccine for every child 5 to 11.” The bad news is it’s likely to be another week before it’s fully ready for distribution. Nobody in the administration cares if kids are vaccinated by Thanksgiving; they’re just aiming for Christmas.

There are 28 million children aged 5 to 11 in the U.S.; according to polls, around one-third of parents plan to get their children vaccinated against COVID-19 quickly, and around one-third say they will never vaccinate their children, with many citing misinformation about effects on future fertility. In fact, trials have shown the vaccine producing a strong immune response in children. There is a small chance of myocarditis, usually mild, in younger male patients, but experts emphasize that COVID-19 itself is far more likely to cause significant heart damage.

Through the course of the pandemic, infections in children lagged behind those in adults, perhaps because children were more likely to be at home and sheltered than adults. In recent months, though, that has changed: For the week ending Oct. 28, children represented a higher proportion of new COVID-19 cases than adults of the U.S. population, with more than 100,000 cases. While in many cases children don’t get terribly sick, 657 children 18 and younger have died; the CDC breaks that data into ages 0 to 4 and then ages 5 to 18, so numbers for children 5 to 11 aren’t readily available. In the 4-and-under group, 202 children have died. They’ll be waiting longer for a vaccine. Tens of thousands of children have been hospitalized, and an unknown number have suffered long COVID. More than 5,200 children have had multi-inflammatory syndrome (MIS-C), with 46 of them dying.

The risks to children aren’t just physical: The vast majority of children have experienced disruptions to their life and their education. In early October, a poll found 23% of parents saying that their children had been forced to quarantine due to COVID-19 exposure. As of mid-October, the coronavirus had forced more than 2,300 school closures. 

Children in the 5 to 11 range will get a pediatric dose of the Pfizer vaccine that’s one-third of what adults and teens are getting. It is being shipped in smaller vials with smaller needles. 

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In Pennsylvania, incorrect Spanish-language instructions for when to vote were sent out to 17,000 prospective voters in Berks County ahead of Tuesday’s key municipal elections in the state.

First reported by local news outlet The Reading Eagle, the county has since admitted to the error discovered on Oct. 20 and acknowledged that on 17,000 sets of instructions for mail-in ballots it sent out, the deadline listed for ballot returns—Nov. 18—was two full weeks after the correct Election Day deadline of Tuesday, Nov. 2.

The correct date was, however, listed in the English portion of the bilingual voting instructions.

According to NBC News, organizers with the voting advocacy group, Make the Road Pennsylvania were busy trying to correct the record by texting, calling, and knocking on doors to ensure that Spanish-speaking voters have accurate information about how to cast their ballots.

A representative for Make the Road Pennsylvania did not immediately respond to a request for comment Tuesday but Patty Torres, an organizing director for the organization, has called publicly for the county to accept any mail-in ballots that come in after Nov. 2 but before the inaccurately listed date of Nov. 18.

Berks County election board commissioner Christian Leinbach reportedly said during a commissioner’s meeting last week that the body did not have the ability, legally, to accept ballots received after Nov. 2.

“This is driven by the state law—we do not have the ability to adjust or change that deadline,” Leinbach said.

The Pennsylvania Department of State confirmed this last week, saying it would be unable to extend the deadline of its own volition. Only a court order could achieve that request.

Leinbach has also told reporters an investigation is underway, but the commissioners believe the error was made because a template from the May 18 primary in the state was used.  

Local radio stations broadcasted an hourly public service announcement in Spanish and one election official, Michael Rivera, told local news stations he joined the Daniel Torres Hispanic Center in Reading, Pennsylvania to get the word out on social media. Rivera also alerted the Latino Affairs Caucus in the Pennsylvania General Assembly.

In addition to this error, Berks County officials also recently copped to a mistake found by a shrewd poll worker. This time, an error appeared in a letter sent out on Oct. 28 to some 800 poll workers.

Like the foul-up on the Spanish language instructions, this message too featured the wrong date for the election—twice.

County officials said the wrong date of Nov. 3 was left in place on the letter because it was the same template used during the last round of elections in 2020.

“The county has determined that the letter was not properly proofread before being sent out,” a statement by Berks County officials said last week.

Officials also said they contacted the judge of elections for each of the county’s 202 precincts with instructions on how to contact poll working staff to confirm the correct date.

The letter itself was intended to inform poll works that because of multiple vacancies, the election board would appoint positions for this year’s election.

In Pennsylvania, municipal elections are underway for mayoral races, as well as school boards and local councils. One of the seats on Pennsylvania’s Supreme Court is also open and is being vied for by Democrat Marie McLaughlin and Republican Kevin Brobson.

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After months of negotiation, and a massive amount of compromise by President Joe Biden and congressional progressives trying to come up with a Build Back Better bill that would get the votes of conservative Democratic Sens. Joe Manchin and Kyrsten Sinema, the White House last week released a revised policy framework. It sharply reduced the agenda Biden had previously laid out … and Manchin is holding it hostage. Again.

It’s easy to focus on the negotiations—the constant up and down of Manchin reentering negotiations and better Democrats than him seeming to believe they’re getting somewhere on a deal with him, only to have Manchin come out and blow it up again with his signature blend of self-righteousness, dishonesty, and sheer dopiness—and it’s essential to do that, to know where there might be leverage or opportunities for truly transformative legislation. But we also need to talk about what it is that Manchin’s holding hostage here because this affects many people and families with caregiving responsibilities in particular.

When the White House released its framework, The New York Times’ invaluable Claire Cain Miller gave a rundown of what it would do for families should it be passed into law. More people need to know about this.

Build Back Better would include universal pre-K for all three- and four-year-olds. That in itself is huge, providing two years of early childhood education for families that currently have to pay for child care until their children turn five and go to kindergarten. (Some states and cities do already have universal pre-K.) Teachers would get pay equivalent to what elementary teachers with the same credentials get. There would be a phased-in requirement for lead pre-K teachers to have a bachelor’s degree in early childhood education, both moves that would potentially raise the standard of care.

But the draft legislation would benefit families with younger children, too, by subsidizing child care. Many families would get free child care, while families earning up to 250% of their states’ median incomes would pay no more than 7% of their income. 

Both of those programs would be funded for six years. The expanded child tax credit, by contrast, would get only one more year of funding. That tax credit, which was included in the American Rescue Plan, lets all but the wealthiest families with children get a child tax credit maximum increased from $2,000 to $3,600, and get it monthly rather than in a lump sum after filing their taxes. It also became fully refundable so that even families with very low incomes could get the full credit. According to Columbia University’s Center on Poverty and Social Policy, 3.5 million children were lifted from poverty with the first two payments alone. This program should be permanent, but extending it for one year is … well, it’s more than nothing. According to the draft legislation, though, the child tax credit would remain fully refundable so low-income families could at least continue getting something.

The Biden Build Back Better framework also expands affordable care for elders and people with disabilities and improves working conditions for the home care workers they rely on. What would be big for working-age adults who are trying to care for their aging parents, often at the same time as they raise children.

There is so much that is not here anymore thanks to Manchin and Sinema and—let’s never, ever forget—every single Republican. Paid family and medical leave should be here, but instead, conservatives are committed to keeping the United States as one of just six countries in the world not to offer it. The child tax credit expansion should be permanent.  Free community college should be here.

The vast majority of Democrats are trying to do the right thing for U.S. families, provide needed care for young children and seniors alike, help parents struggling to hold jobs and raise children and care for their aging parents, and expand education to young children and young adults. A couple of Democrats are joining every Republican in blocking that right now. But don’t lose sight of what should be possible here.

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Over the weekend, thousands of people walked across the Brooklyn Bridge “in support of” police, firefighters, and other municipal employees who oppose the city’s vaccine mandate. That protest was one of several that came with dire predictions about the consequences of the mandate. The New York Post (link purposely omitted) has been whining for weeks that the vaccine mandate will mean “fewer cops and more crime,” warning that fire stations might be closed, and providing ominous predictions that “People will die in this city” because of vaccine mandates.

And as The Washington Post notes, the heads of five major unions warned that “10,000 unvaccinated police officers” could be pulled off the streets come November 1. It’s November 2. So how did things actually go?

So far, the number of NYPD placed on unpaid leave is … 34. Of that, fewer than a dozen are uniformed officers. The rest are civilian staff.

There’s a reason that, when Hammurabi wanted to keep people from cutting down trees in Babylon, he didn’t offer a poem—he made a law that came with consequences. There’s a reason stop lights are not a suggestion. And there’s a reason any child entering a Florida elementary school is required to have vaccinations against seven different diseases, including four or five doses of vaccines against some of those diseases.

It’s because mandates work. Recommendations, opinions, and proposals are all fine, but to ensure alignment with the public good, no matter how obvious, it takes a mandate. One that carries consequences.

There are still union officials out there waving their hands and predicting dire consequences. As New York’s ABC 7 reports, Oren Barzilay, president of the NYC EMS union, is a vaccine skeptic who is was on hand at the bridge protest to provide some genuinely alarming statements.

“All our members were exposed to this disease, and we developed our natural immunity,” said Barzilay. “If we have the natural antibodies in our body, is it necessary to really inject something else into our body?”

That’s alarming not because of Barzilay’s claims that half of EMS workers in the city might walk off the job, but because it’s so profoundly ignorant—and because ABC ran that comment, and the comments of other vaccine skeptics, without bothering to provide a single word of correction.

The ABC 7 article is completely typical of how this situation is being presented to the public: 

• There are absolutely no comments from workers or vaccinated officials or from anyone who favors the mandate.
• There are non-factual claims about “natural immunity” or how the vaccine doesn’t work, none of which are countered by providing any facts or statistics.
• There is an extended quote from a Republican candidate for mayor using this moment as a political lever, but no opposing comment.
• Everything—everything—in the article is written to heighten the idea that this is a crisis about to topple the city.

As NPR reported last week, vaccine mandates are proving effective over and over. After warnings that airline workers would walk off the job, leaving travelers stranded, 99.5% of United employees were vaccinated before that company’s deadline.

Elsewhere, other employers also report success with mandates. Tyson Foods, New York City schools, major hospital systems in Maine and the NBA are among those with vaccination rates topping 90%.

The month before that, the Washington Post showed that when Massachusetts State Police issued a mandate, only one (1) state trooper actually quit rather than take a jab. In North Carolina, 375 hospital workers (out of 35,000) were suspended after refusing to be vaccinated. But then, 200 of those came back and took their vaccine. That’s another 99.5% vaccination rate.

Mask mandates work, as well. As Nature reported in May, countries, states, and communities with mandates had higher compliance in using masks, and much better results when it came to cases of COVID-19. Mask mandates directly contributed to dropping community spread by 70% within days in closely monitored German cities. Where mask-wearing was voluntary, results were much less dramatic. Mask mandates—enforced mask mandates—are key to how China pushed back the first wave of disease in that country and has avoided another surge, even against the much more contagious delta variant.

One study showed that a national mandate for wearing masks on the job could have had amazing results in the United States—including a 47% reduction in deaths.

When something is absolutely necessary for public protection, it takes a mandate. And the kind of numbers that these mandates are generating, numbers of 90% and above, are exactly the level of vaccination that’s needed to actually bring COVID-19 under control and halt community spread in most areas.

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After oral arguments at the Supreme Court on Monday regarding SB 8, the strict anti-abortion law originating in Texas, justices left the impression that the Lone Star State may have overextended itself when rolling out a bill that is unabashed in its attempt to wrestle bodily autonomy away from women and people who can become pregnant.

SB 8, known as the Texas Heartbeat Act, declares it illegal for an abortion to be performed after six weeks’ gestation, a period during which most pregnancies are not yet detected. It also leaves zero exceptions for pregnancy occurring in cases of rape, sexual abuse, or incest.

Unlike most abortion restriction laws, wherein state officials enforce legislation and are thereby the appropriate target for lawsuits when they arise, SB 8 instead leaves enforcement up to the public by allowing citizens to sue abortion providers directly, as well as anyone believed to have “aided or abetted” an abortion after six weeks.

SB 8 also does not place any limits on a potential plaintiff’s interests. In the simplest of terms, this means that under the Texas bill, all one needs to sue an abortion provider is time and money. With an ample or even modest supply of both, SB 8 can also catalyze financial ruin, since it awards a $10,000 bounty—to be paid by the defendant—to any victorious litigant.

In September, the Supreme Court refused to block enforcement of SB 8. It fast-tracked two appeals: one from abortion providers and the other from the Biden White House in Whole Women’s Health v. Jackson and United States v. Texas, respectively.

Representing abortion providers in Whole Women’s Health, Marc Hearron, attorney for the Center for Reproductive Rights, argued Monday that SB 8 was baldly unconstitutional and asked the court to bar Texas law clerks from accepting any lawsuits invoking the bill.

Newly appointed U.S. solicitor general, Elizabeth Prelogar, represented the Biden administration and illuminated carefully the constitutionality argument at hand.

“If Texas can nullify Roe and Casey [v. Planned Parenthood] in this manner, then other states could do this with other constitutional rights or rights they disfavor,” Prelogar said.

She continued later, saying: “What Texas has done is taken a constitutional precedent form this court and legislated in direct defiance of that precedent and then tried…to box the judiciary out of the equation and prevent the courts from being able to provide any meaningful form of redress.”

This maneuver by Texas is an example of a state actively “flouting the supremacy of federal law,” she concluded.

Justice Elena Kagan appeared to agree with Prelogar’s implications.

“Now we’re open for business,” Kagan opined of an intact SB 8. “There’s nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like.”

During a separate exchange with Texas’ solicitor general Judd Stone, Kagan also bristled with a curt interpretation of what she suspects is one of the inherent goals underlying SB 8.

“The entire point of this law, its purpose, and its effect is to find the chink in the armor of Ex Parte Young, that Ex Parte Young set out a basic principle of how our government is supposed to work and how people can seek review of unconstitutional state laws. And the fact, that […] some geniuses came up with a way to evade the commands of that decision, as well as command the even broader principle that states are not to nullify federal constitutional rights, and to say, ‘We’ve never seen that before, so we can’t do anything about it,‘ I guess I just don’t understand the argument.”

As pointed out in an explainer in The New York Times on Monday, Ex Parte Young emerged in 1908 over a railroad rate dispute involving a federal lawsuit and a state’s attorney general, Edward Young. Ultimately, the high court found that state officials were open game for lawsuits in federal courts. Young, in turn, has acted as a stopgap to the enforcement of otherwise unconstitutional laws for more than 100 years.

Supreme Court Justice Rufus Peckham wrote in the majority decision for Young that injunctions by federal courts against state courts would “violate the whole scheme of government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.”

As noted by the Times: “The twist raised by the Texas anti-abortion case is that state officials are forbidden to enforce the law, which conflicts with the Supreme Court’s current abortion rights rulings.”

SB 8, instead, relies on private citizens to enforce it through the filing of lawsuits against abortion providers—or the people who get abortions or help others get abortions. The U.S. and abortion providers alike want to stop this by securing an injunction that would block state courts from considering them.

Justice Kagan highlighted that the abortion provider and U.S. government’s allegations of a chilling effect brought on by SB 8 were not a figment of anyone’s imagination.  

“The provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court. That’s not a hypothetical. That’s an actual,” Kagan said.

Kagan was not the only justice who appeared critical of the Texas bill. Notably, Justice Brett Kavanaugh posed questions Monday, hinting that the bill may become a tool to infringe on other long-standing rights, like the right to bear arms.

Chief Justice John Roberts and Justice Sonia Sotomayor at one point raised the hypothesis that a state could, if SB8 was permitted, decide on its own to levy a $1 million fine, for example, for violations of its gun safety laws.

“Millions and millions [could be] retroactively imposed, even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right?” Kavanaugh asked Monday.

Justice Amy Coney Barrett also appeared to share similar concerns about the ripple effects of the bill and, particularly, what sort of defense abortion providers might have when sued, since SB 8 comes with built-in restrictions to what a defendant can argue in court. This was a critical moment; opponents to SB 8 regularly argue the legislation unfairly and significantly prejudices the whole justice system against them from the start.

“So, if that’s the case, the full constitutional defense cannot be asserted in the defensive posture. Am I right?” Barrett said, directing the question at Hearron.

Hearron agreed.

Four justices are almost certain to vote in favor of thwarting SB 8; it is possible that threats to rights beyond having an abortion could sway Justices Kavanaugh and Barrett, bringing that number to six in favor of shutting the Texas law down. 

The next test for abortion rights in the U.S. arrives in December. That is when the Supreme Court will hear oral arguments for Dobbs v. Jackson Women’s Health Organization, a direct challenge originating in Mississippi that asks the high court to overturn Roe.

Editor’s note: An earlier version of this post incorrectly suggested that individuals receiving an abortion can be sued but has been clarified to note only abortion providers or those who assist can be sued.

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If it’s a big election night with a close race at Daily Kos Elections, that means it’s time for county-by-county benchmarks! On Tuesday, we’re going to be watching the Virginia gubernatorial race intently. The race features a matchup between former Democratic Gov. Terry McAuliffe—who’s running to replace term-limited Democratic incumbent Ralph Northam, in the one remaining state that doesn’t allow governors to serve consecutive terms—and Republican businessman Glenn Youngkin. Although McAuliffe had enjoyed polling leads of low- to mid-single digits for most of the race, in the last few weeks, Youngkin has taken the narrowest of advantages.

While Virginia saw fairly comfortable wins for Joe Biden in 2020 (54-44) and Northam in 2017 (54-45), the state is not blue enough such that a Democratic candidate can coast to victory. That’s especially true in an off-year election where there’s a Democrat in the White House. It’s worth noting, though, that in his previous bid in 2013, McAuliffe managed to beat the curse of “thermostatic public opinion,” winning narrowly against the backdrop of Barack Obama’s second term.

Virginia is also a particularly important state for using benchmarks to interpret early results as they first come in, since its smaller and more rural counties typically report earlier. This tends to make the first returns look much more Republican-leaning than where they finally end up. Our benchmarks accomplish two things: They focus your attention on the state’s most populous counties—the ones home to at least 2% of the state’s total votes, as opposed to the tiny ones that report the earliest—and they also tell you what minimum percentages the Democratic candidate should be hitting in those counties to be on track to win narrowly.

Just as an example, Biden won Fairfax County in the northern Virginia suburbs by a 70-28 margin, while winning statewide 54-44. So we aren’t sitting around wondering whether McAuliffe can win Fairfax; if he somehow lost the county, he would be en route to a catastrophic wipeout. Instead, the key question is whether he can win Fairfax by, say, 32 points or more, which is what would help him stay on pace to win statewide.

One brief warning: Virginia also has a small Fairfax city, which reports separately, so make sure you’re looking at the correct row on the election results. In addition, it also has a very small—and very red—Richmond County, so if you’re looking at the “Richmond” results, make sure you’re looking at the city. (One of Virginia’s other unique quirks is that its major cities operate independently from their surrounding counties, and its election results reflect that.)

Now, you might be thinking, “Why are we looking at presidential results? The gubernatorial race is an off-year election with totally different dynamics.” That’s a good question, and we’ve got you covered; here is an alternative model based on the 2017 gubernatorial election. You’ll notice, however, that the differences aren’t meaningful. The target benchmarks are close are very similar to those using 2020 as a model because the 2017 results were almost exactly the same as the 2020 results. Northam won by 9 points statewide compared to Biden’s 10-point win three years later, with similar-sized margins in the state’s largest counties.

One interesting consequence of the increasing nationalization and polarization of our politics—one that becomes more evident when you compare various election results using a similar lens as we’re using—is that the criteria that pundits used to give a lot of weight to, like “favorite son” status in a particular part of a state, or the penalty that a more progressive candidate might suffer relative to a candidate closer to the theoretical “median voter,” just don’t usually have the same disproportionate impact that they used to. More and more, the main difference-maker is simply who has the “D” and who has the “R” after their names.

To that end, these benchmarks will also help track Virginia’s two other statewide contests, the open-seat race for lieutenant governor between Democrat Hala Ayala and Republican Winsome Sears, and Democrat Mark Herring’s bid for a third term as state attorney general against Republican Jason Miyares. Polling has shown all three races as similarly close, so they’ll likely rise and fall together, though it’s possible Herring might enjoy the tiniest of boosts as the only incumbent on the ballot.

Please join us at 7 PM ET at Daily Kos Elections for our liveblog. We’ll be covering not just Virginia’s statewide races but also the Old Dominion’s elections for all 100 seats in the state House—which Democrats control 55-45—and a wide variety of important contests across the country.

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The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, Stephen Wolf, Carolyn Fiddler, and Matt Booker, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, James Lambert, David Beard, and Arjun Jaikumar.

Leading Off

● Election Night: If I Were a Richmond: The big night is just about here, and we have a lot of exciting races in store on Tuesday from coast to coast. We’ll be liveblogging Tuesday’s election results at Daily Kos Elections starting at 7 PM ET, and tweeting as well. We’ve put together our hour-by-hour guide to the major contests as well as our key race tracker we’ll be updating throughout the night.

The main action will of course be in Virginia, where Democrats are looking to defend the governorship. Contributing editor David Jarman has compiled a set of county benchmarks that will help you make sense of returns as they come in to see if Democrat Terry McAuliffe is hitting his targets, or whether Republican Glenn Youngkin is positioned for a win. Old Dominion Democrats are also looking to hold the positions of lieutenant governor and attorney general, and their newly won majority in the state House of Delegates. To keep track of the state House battlefield, we’ve put together a guide to the key contests.

But it’s not just Virginia that’s for election lovers. While there’s little question that Democratic Gov. Phil Murphy will win a second term in New Jersey, both parties are hoping to score wins in the state House and Senate. There’s also a very crowded Democratic primary in the special election for Florida’s 20th Congressional District, a pair of House specials in Ohio, and a competitive race for a Republican-held seat on the Pennsylvania Supreme Court.

Campaign Action

We also have competitive mayoral contests in Albuquerque, Atlanta, Boston, Buffalo, Cleveland, Minneapolis, Seattle, St. Petersburg, and many more cities. We’ll further be watching races for county executive, district attorney, and sheriff across the country, as well as a pair of high-profile ballot measures in Minneapolis that would replace the police department with a new Department of Public Safety as well as greatly strengthen the mayor’s office.

You can find all this, and even more, in our hour-by-hour guide to election night. We also have 14 legislative races in eight different states on tap, which we’ve listed here; you can find more about the big races to watch in our Special Elections item below.

We’re also pleased to announce that the annual Daily Kos Elections’ prediction contest is back! Once again, the exceptional Green’s Bakery is generously sponsoring our annual prediction contest. For more details, including contest rules and our submission form, click here.

We hope you’ll join us starting at 7 PM ET at Daily Kos Elections and on Twitter for our coverage of what will be an eventful election night!

● BABKA: Have you entered the Daily Kos Elections babka contest yet this year?! What are you waiting for!

Redistricting

● CO Redistricting: As expected, the Colorado Supreme Court has approved the new map adopted by the state’s independent congressional redistricting commission in September. Under the 2018 amendments that created the commission and its separate legislative counterpart, the court is required to assess any maps to ensure they adhere to criteria laid out in the state constitution and accept input from interested parties. The justices concluded that the map’s challengers did not meet the constitution’s high standard of review: whether commissioners engaged in an “abuse of discretion.”

Those challengers included Latino voting rights advocates, who argued that the state constitution provided greater protections for racial and language minority groups than specified in the Voting Rights Act. The court, however, agreed with the commissioners, ruling that language in the constitution does not afford such groups additional protections. The justices also rejected complaints from Democrats that the commission failed to properly prioritize the creation of competitive districts.

The end result is a map that could easily result in equal representation for Republicans and Democrats, despite the fact that the state voted for Joe Biden by a comfortable 55-42 margin last year. That’s because the new 8th District, based in the Denver suburbs, would have gone for Biden 51-46 and in fact would have voted for Donald Trump 46-45 in 2016. The map also makes the 7th, another Denver-area seat, several points redder, taking it from 60-37 Biden to 56-42 Biden—and Hillary Clinton would have carried it just 47-44. In a tough year for Democrats, then, Republicans could wind up with a 5-3 majority.

Conversely, the Republican seat that Democrats were most eager to target—the 3rd District, held by conspiracy theorist Lauren Boebert—would shift a couple points to the right, from 52-46 Trump to 53-45 Trump. That very likely puts it out of reach for Democrats, at least for 2022 if not beyond.

Thanks to Colorado’s 2018 amendments, the legislature and governor no longer play a role in redistricting, meaning that the new congressional map is now law. The state Supreme Court is also reviewing the commission’s legislative proposals, but they’ll likely pass muster for the same reasons. While it’s possible that these maps could face further legal challenges through normal lawsuits, the Supreme Court’s interpretation of state law regarding the Voting Rights Act probably forecloses what would have been the most potent avenue of attack.

● NC Redistricting: A committee in North Carolina’s Republican-run state Senate passed the GOP’s new congressional redistricting proposal in a party-line vote on Monday. The map would enshrine gerrymandered districts that would give Republicans 10 seats in the state’s House delegation to just four for Democrats, and possibly even give the GOP an 11-3 advantage.

Most notably, the plan would split the Piedmont Triad (the region in the north-central part of the state made up of the cities of Greensboro, Winston-Salem, and High Point) between three different districts, despite the fact that Republicans had to reunite that very same area after state courts blocked the GOP’s previous map in 2019. Under North Carolina law, Democratic Gov. Roy Cooper would not be able to veto any maps passed by Republicans.

● OH Redistricting: Ohio’s Republican-dominated redistricting commission has, as expected, missed its Oct. 31 deadline to draft a new congressional map, kicking the process back to the state legislature. That development came a month after lawmakers missed their own Sept. 30 deadline to come up with a new map, which punted the task to the commission in the first place. Now Republicans will be able to adopt new districts with less support from Democrats than would have been necessary previously, or even none at all.

● OK Redistricting: Republican lawmakers in Oklahoma have released a new draft congressional map that, as expected, would make the state’s only competitive seat safely red by shattering the Oklahoma City area and dividing it between three districts. Under the old map, 92% of Oklahoma County is contained in the 5th and just 8% in the 4th; the new proposal would place a full third of the county—a portion that voted 54-43 for Joe Biden and includes its most heavily Latino precincts—into the 3rd and 4th Districts.

As a result, the 5th District, which voted for Donald Trump by a 51-46 margin last year, would instead have gone for Trump 58-39 according to Dave’s Redistricting App. This gerrymander would insulate Republican Rep. Stephanie Bice from future challenges after she unseated Democratic Rep. Kendra Horn in a close 52-48 contest in 2020.

Senate

● GA-Sen: Herschel Walker’s allies at 34N22 Leadership have publicized a mid-October Republican primary poll from OnMessage Inc. that finds the former NFL player sacking state Agriculture Commissioner Gary Black 74-6.

Governors

● NJ-Gov: Rutgers University: Phil Murphy (D-inc): 50, Jack Ciattarelli (R): 42 (June: 52-26 Murphy)

● NV-Gov: Rep. Mark Amodei tells The Nevada Independent that he will run for re-election to his reliably red northern Nevada House seat rather than enter the Republican primary for governor. The congressman went on to predict that there would be an ugly nomination fight to take on Democratic Gov. Steve Sisolak, saying, “Republicans aren’t famous for forgiving and forgetting after a primary. And I’m not saying that disparagingly.”

● NY-Gov: New York City Mayor Bill de Blasio last week set up a fundraising committee that could be used in a potential campaign for the Democratic nod.

● TX-Gov: YouGov’s new survey for the Texas Hispanic Policy Foundation and Rice University gives Republican Gov. Greg Abbott a tiny 43-42 edge against 2018 Senate nominee Beto O’Rourke, who has not yet announced his plans, in a hypothetical general election. Back in June, a Public Opinion Strategies internal for Abbott showed the incumbent ahead 52-42; UT Tyler has also released a few polls this year, but they inexplicably did not identify any candidate’s party affiliation.

YouGov also tests a scenario where actor Matthew McConaughey runs as an independent and finds Abbott defeating O’Rourke by a slightly larger 40-37 spread as 9% goes to McConaughey. The self-described “aggressively centrist” Oscar winner has spent the year flirting with a bid, though he’s declined to say which party, if any, he’d run with.

YouGov also takes a look at the GOP primary, and it finds Abbott in strong shape to win renomination. This portion of the survey, which sampled 405 Republican voters, has the governor defeating former Florida Rep. Allen West 64-13, with another 5% going to ex-state Sen. Don Huffines.

● VA-Gov: Insider Advantage (R) for Fox 5: Glenn Youngkin (R): 47, Terry McAuliffe (D): 45, Princess Blanding (Libertarian): 2

House

● FL-20: The Democratic firm Expedition Strategies, working on behalf of the group Pro-Israel America, has released the first, and likely only, Democratic primary poll we’ve seen since July, but it finds no favorite heading into Tuesday:

• Businesswoman Sheila Cherfilus-McCormick: 15
• Broward County Commissioner Dale Holness: 14
• Broward County Commissioner Barbara Sharief: 13
• State Sen. Perry Thurston: 10
• State Rep. Bobby DuBose: 6
• State Rep. Omari Hardy: 5

A 27% plurality of respondents are undecided in a contest where only a simple plurality is needed to prevail. Hardy has attracted attention in this contest for his opposition to U.S. military aid to Israel, but Pro-Israel America has not endorsed anyone or otherwise gotten involved in this race

● OR-06: Amy Ryan Courser, who was the Republican nominee last year in the current 5th Congressional District, has announced that she’ll run in the new 6th District.

Courser, a former Keizer city councilor who raised all of $232,000 last time, attracted no serious outside help in her 2020 campaign against Democratic Rep. Kurt Schrader, but she held the incumbent to a surprisingly modest 52-45 victory as Joe Biden was prevailing by a larger 54-44 spread; since then, Courser has spent her time spreading conspiracy theories about the presidential election. Schrader himself has yet to announce if he’ll run in the new 5th or 6th District.

● TX-15: Nonprofit official Eliza Alvarado announced in late October that she would seek the Democratic nod for the redrawn 15th District, a Rio Grande Valley seat that supported Donald Trump 51-48 last year. Other contenders may end up running now that Rep. Vicente Gonzalez has confirmed that he’ll run in the more secure 34th District rather than defend this constituency, but they don’t have too much time to decide: The Texas Tribune notes that the Texas secretary of state’s office has confirmed that the candidate filing deadline will be Dec. 13, which is one of the earliest in the nation.  

● TX-34, TX-AG: Democrat Rochelle Garza, a former attorney for the ACLU, said on Monday that she’s abandoning her bid for Congress to instead run for state attorney general next year. Garza had entered the race for Texas’ 34th Congressional District after Democratic Rep. Filemon Vela decided to retire earlier this year, but after Republicans passed their new gerrymandered congressional map, Rep. Vicente Gonzalez announced that he’d seek re-election in the redrawn 34th rather than in the 15th District, which he currently represents.

In deferring to Gonzalez—and avoiding a primary battle she’d likely have lost—Garza earned an endorsement from the congressman for her new campaign. She’ll still face a competitive primary, though, with two other notable Democrats already declared, civil rights attorney Lee Merritt and former Galveston Mayor Joe Jaworski. Republicans also have a contested fight for their nomination: Incumbent Ken Paxton, who is under indictment for securities fraud, has drawn challenges from state Land Commissioner George P. Bush and former state Supreme Court Justice Eva Guzman.

● VA-07: Far-right state Sen. Amanda Chase has filed FEC paperwork for a potential campaign against Democratic Rep. Abigail Spanberger next year, though she has not yet announced a bid. What Chase has done, though, is spread conspiracy theories about Tuesday’s race for governor by baselessly accusing Democrats of “cheating.”

Attorneys General

● NY-AG: Incumbent Tish James’ decision to seek the Democratic nomination for governor means that New York will host an open seat race for one of the most prominent attorney general offices in the country. There are plenty of Democrats who could end up running here, but the eventual nominee should have no trouble prevailing in next year’s general election for an office the Republicans haven’t won since 1994.

One familiar name who has already taken action is law professor Zephyr Teachout, who said in early October she’d run for attorney general if James didn’t and filed campaign paperwork Thursday. Teachout waged a high-profile, but unsuccessful, 2014 primary campaign from the left against then-Gov. Andrew Cuomo, and she was Team Blue’s nominee two years later for the swingy 19th Congressional District in the Hudson Valley.

Teachout went on to run for attorney general in 2018 after incumbent Eric Schneiderman resigned in disgrace, and she hoped that she’d be able to excite progressives for her campaign against James, who was New York City public advocate at the time, and Rep. Sean Patrick Maloney. James, though, beat Teachout 40-31, with another 25% going to Maloney.

The City’s ​​Josefa Velásquez also reported on Oct. 21 that Brooklyn District Attorney Eric Gonzalez was sounding out supporters about a potential campaign to succeed James. A source close to Melinda Katz, who is the top prosecutor in neighboring Queens, also told Velásquez that “she’s certainly going to be ready to run” for an open seat.

Velásquez added that state Sen. Mike Gianaris, who is the chamber’s deputy majority leader and the head of Team Blue’s state Senate campaign arm, was also interested, while Assemblyman Clyde Vanel has said he’s thinking about it as well.

City & State also mentioned Maloney as a possibility, though he’s currently busy running the DCCC and hasn’t shown any obvious interest in another A.G. bid. Maloney didn’t need to sacrifice his House seat to run for attorney general in 2018 because New York at the time held federal primaries in June and state-level nomination contests in September, which allowed Maloney to be able to continue seeking re-election following his statewide defeat. However, after Empire State Democrats regained control of the state Senate in 2018, they consolidated the primaries the following year, so any House member this time would need to choose which post to run for.

The Albany Times Union also name-drops Rep. Kathleen Rice as a potential candidate, but she also hasn’t given any indication she’s thinking about it. Rice ran for attorney general in 2010 when she was Nassau County district attorney and lost the primary to Schneiderman by a narrow 34-32 margin. She was talked up as a possible contender eight years later following Schneiderman’s departure, but Rice decided to stay in the House.

● TX-AG: YouGov, working on behalf of the Texas Hispanic Policy Foundation and Rice University, finds Donald Trump’s endorsed candidate, scandal-ridden incumbent Ken Paxton, holding a giant 54-18 lead over Land Commissioner George P. Bush in the Republican primary. This survey sampled 405 Republican voters.

Legislatures

● Special Elections: There are numerous special elections across the country on tap for Tuesday. You can find a list of those races and the presidential results of those districts here, and we’ll preview a couple of the more intriguing contests below:

ME-HD-86: This Republican district in the Augusta area became vacant after former Rep. Justin Fecteau moved out of the district. Augusta City Council member Raegan LaRochelle is the Democratic candidate taking on Army veteran James Orr, a Republican.

This district leans Democratic at the presidential level, backing Hillary Clinton 50-43 in 2016 and Barack Obama 59-37 in 2012. Despite this, Republicans have held this seat since 2014. Democrats control this chamber 79-65 with five independent/third party members and one other seat vacant.

MI-SD-28: This Republican district that takes in areas north and west of Grand Rapids became vacant after former Sen. Peter MacGregor was elected treasurer of Kent County last year. The Democratic candidate is former Kent County Commissioner Keith Courtade and the Republican is state Rep. Mark Huizenga.

This district is Republican leaning turf, supporting Donald Trump 58-38 in 2016 and Mitt Romney 61-38 in 2012 and. Joe Biden was able to turn in a stronger performance than other recent Democrats in this district, though, with Trump winning by a smaller 56-42 spread last year.

Mayors

● Buffalo, NY Mayor: The race to lead Queen City will be one of Tuesday’s higher-profile contests, but if there are a large number of write-in votes, it could delay the announcement of a winner.

WBFO writes that the Erie County Board of Elections will report on election night roughly how many votes were cast for Democrat India Walton, who is the only candidate on the ballot, and how many write-ins there are. However, it won’t be able to initially verify how many of those write-ins were cast for Mayor Byron Brown until a hand-count takes place, which Democratic Elections Commissioner Jeremy Zellner says may not happen until all mail-in ballots have arrived on Nov. 15. There will almost certainly be plenty of legal wrangling if things are close.

● Cincinnati, OH Mayor: City Councilman David Mann is using his first and only TV ad ahead of Tuesday’s general election to accuse his fellow Democrat, Hamilton County Clerk of Courts Aftab Pureval, of seeking to “defund the police” and having a plan to “pull cops off our streets.”

The Cincinnati Enquirer writes that the Pureval plan cited in the commercial doesn’t say anything about growing or shrinking the size or budget of the police force, while the clerk himself has said, “We need more officers.” Pureval also has stated that he’s opposed to defunding the police.