Records!: A HIPAA Tragedy

HIPPA is not a real thing. But HIPAA is very real, and while it does not "protect" your right to wander through the public while carrying communicable diseases, it can cause headaches in other ways -- such as when you wish to send your medical records from one healthcare provider to another.

There are three characters in this play, aside from myself. As you may know, I have an eye condition called keratoconus. It was diagnosed when I was in Berkeley, and most of the care I've had surrounding it was done via my old Berkeley healthcare provider. Since moving to Portland, of course, I have a new healthcare provider. But they don't have the right resources to treat keratoconus in-house, so they have since referred me to a specialist. 

My quest is to transfer the medical records from my old healthcare provider to the specialist my current provider had referred me to. The problem is that these records are rather substantial -- 180 pages long, in fact.

Act I

Specialist: ... and if you could send us any records you have of your past keratoconus treatments, that'd be great.

Me: Sure, I'd be happy to.

[I go home]

Me: Let's see ... medical records. Oh yes, I remember -- I had Old Provider send them to me a few months ago. They're on a PDF on my computer. How convenient.

[calls specialist]

Me: Hello! I have the medical records you want. How can I send them over to you? Your web portal says the file is too large for me to attach to an internal message.

Specialist: Oh, sorry. Can you fax it to us?

Me: Pardon?

Specialist: Fax. Or snail mail it to us.

Me: Well, it's 180 pages of records, so ... no. Do you have email?

Specialist: No, we can't accept them by email. It's a HIPAA thing.

Me: Then how come old provider emailed them to me?

Specialist: I don't know. Maybe they're lawless anarchists. You could physically bring them to us, maybe?

Me: You want me to physically print and deliver 180 pages of records to you? When I already have it as a digital PDF?

Specialist: Yes, that'd be fantastic.

Me: No, it wouldn't. There's no way to electronically transfer the document?

Specialist: Well, there is one way. 

Me: Wonderful.

Specialist: You could put it on a CD for us, and mail that.

Me: ... a CD. 

Specialist: Yes, I think that would work.

Me: Since it is 2022, how about a USB thumb drive?

Specialist: No.

Me: [Incredulous silence]

Specialist: Might I suggest Kinko's?

Me: [Incredulity yielding to bubbling rage]

Specialist: Or you could call your current provider, and ask them to fax the records. They do it all the time.

Act II

[Calls current provider]

Me: Hello! Could you please check to see if you have my old medical records, and send them to specialist?

Current provider #1: Sorry, wrong department. You need the records department. Shall I transfer you?

Me: Yes, please and thank you.

[Hold music]

Current provider #2: You have reached the records department. For all medical records except dental and vision records, press 1.

Me: Well, I need vision records, so ...

Current provider #2: For dental records, or general inquiries, press 2.

Me: [Waits patiently for "vision records" option]

Current provider #2: ... Would you like to hear these options again?

Me: Um, I guess I fall under "general inquiries"? 

[Presses 2]

Current provider #3: Hello, you reached "general inquiries". Can I help you?

Me: I'd like some vision records released.

Current provider #3: Oh, sorry, you need our records department for that. This is just the general information line. Shall I transfer you?

Me: [sigh] ... yes.

[Hold music]

Current provider #2: You have reached the records department. For all medical records except dental and vision records, press 1....

[Presses 1]

Current Provider #4: Hello! How can I be of service?

Me: I'd like to have some vision records released.

Current Provider #4: Sorry, that's not our department. You need the "records release" office. Shall I transfer you?

Me: Death is so near, and yet so far.

Current Provider #4: What?

Me: Yes, please transfer me.

[Hold music]

Current Provider #5: Records release department!

Me: I'd like to have some vision records released.

Current Provider #5: I can help with that!

Me: Praise be!

Current Provider #5: When were the records created?

Me: From [date to date]

Current Provider #5: That's from before you were a member.

Me: Yes. But I believe you have a copy?

Current Provider #5: Maybe we do, maybe we don't, but I can't release them. They're not our records.

Me: I know -- they're my records. Can't I authorize you to release them?

Current Provider #5: No, sorry. You'll have to call your old provider and have them fax the records. They do it all the time!

Act III

Me: Hello?

Old Provider: Hello! We received your request to have your medical records faxed to specialist.

Me: Great!

Old Provider: The problem is, those records are 180 pages. 

Me: I know.

Old Provider: That's too many for us to fax. 

Me: You're kidding.

Old Provider: Can we email it instead?

Me: Somebody is going to die.

Fin.

Machiavelli's Court

One thing the far-right Supreme Court has learned well, that Democrats in Congress would have done well to learn (it's probably too late now), is a lesson from Machiavelli about exercising power. To wit: if you feel compelled to take certain actions that you know are unpopular, or will engender backlash -- do them all, do them early, and do them all at once.

Do not try to spread them out. Do not feel the need to pull back on some to balance the others. Do not hem and haw with baby steps. Do everything you want to do early, and immediately. The backlash will come, but the backlash won't be materially different between one outrageous thing and ten outrageous things. Spreading them out just creates new moments of fresh anger. Purported sops won't make people forgive in the moment (are you feeling any less livid at the Supreme Court because of Biden v. Texas?). Get them all out of the way in one fell swoop. Once your opponents are crushed, then you can start indulging in gestures of peace. If you feel like it.

From abortion, to guns, to climate change, to funding religious schools, to prayer in school, to Indian sovereignty, to racial gerrymandering, the Supreme Court delivered an orgy of far-right fantasies over the course of barely a week. Liberals are furious. How could we not be? But we're also reeling. How could we not be? If a few of these decisions came out the other way, would we be materially less furious? Unlikely. If the decisions had been spread out, would our rage be dampened? No, if anything it would have been reignited anew each time. 

The Supreme Court acted decisively and without remorse. Its response to any notion of moderation or gesture of even-handedness was an enthusiastic middle finger. The strong take what they may, and the weak suffer what they must. Not exactly ideal behavior from a court, but for those who see themselves as princes -- well, Machiavelli would be proud.

And in turn, failing to follow this advice is the mistake Democrats made over the past two years (and of course, we can lay blame primarily at the feet of Synema and Manchin here, with some assist from the "Problem-Solvers Causers Caucus"). Democrats needed to do big things. Those things would be controversial. Talking them out indefinitely in a bid for a compromise that would never occur only would bleed resources (ask Barack Obama how that went with the ACA). Better to slam them through at the start. Voting rights, anti-gerrymandering, DC statehood, BBB, protecting abortion rights. Yeah, these things would be controversial. They wouldn't be any less controversial if they're spread out in drips and drabs. Do them all, do them together, weather the storm, and then spend the rest of your time consolidating your position. 

Alas, now its probably too late. This may be why, even after literally everything that's happened, if there was a single item I could slam through Congress before the turnover it'd be DC statehood. It's not necessarily more important than other candidates -- though DC's status as an American colony is a moral disgrace of epic proportions -- but it'd make it more likely Democrats would hold Congress through 2022 and so could try again next time. Democrats having power is not a sufficient condition for reversing these terrible trends, but it's a necessary one. It's hardly guaranteed they'll learn their next time around; but we'll never find out if there never is a "next time".

Law vs. Antisemitism Conference 2023: Call for Papers

 CALL FOR PAPERS: 2^nd Annual Law vs. Antisemitism Conference (2023)

Lewis & Clark Law School, in association with the Lewis & Clark Law Review and the Law vs. Antisemitism Project, are proud to sponsor the 2nd Annual Law vs. Antisemitism Conference, to be held March 26-27 at Lewis & Clark Law School in Portland, Oregon. Conveners are David Schraub (Lewis & Clark), Robert Katz (Indiana University), and Diane Kemker (Southern University). The keynote speakers will include Eric K. Ward, Executive Director of the Western States Center and one of the nation’s foremost experts on the connection between antisemitism and White supremacy, as well as Steven M. Freeman, Vice President of Civil Rights and Director of Legal Affairs for the Anti-Defamation League. The Conference will begin on the afternoon of Sunday, March 26, and run throughout the day Monday, March 27, 2023.

The conference is interdisciplinary, and we welcome submissions on the intersection of law and antisemitism from academics and practitioners of all backgrounds and all statuses. Selected articles presented at the conference will be published as a symposium issue in Volume 27, Issue 4 of the Lewis & Clark Law Review (forthcoming in 2023).

Possible topics for conference presentations and papers may include, but are not limited to:

• Contending definitions of antisemitism itself (International Holocaust Remembrance Alliance (IHRA), Nexus, Jerusalem Declaration on Antisemitism (JDA))
• Legal history as it relates to the regulation of Jewish immigrants and Jews in colonial and antebellum America
• Title VII and employment anti-discrimination law as a tool against antisemitism
• Antisemitism in the legal profession
• Intersections of antisemitism and anti-trans or homophobic movements
• Jewish involvement/antisemitism in civil rights movements, including BLM
• Holocaust reparations
• First Amendment speech issues (hate speech online and elsewhere, Holocaust denialism)
• First Amendment religious freedom issues as these relate to Jews and Judaism, including Establishment Clause and Free Exercise Clause controversies
• Implications of recent Supreme Court decisions on abortion, guns, education, religious liberty, or other matters as they relate to Jewish equality
• Jews and Whiteness, Jewish Anti-Black racism/Black antisemitism
• Antisemitism and White nationalism/White supremacy
• Antisemitism and antisemitic laws in American legal history
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• The use of zoning and land-use law by and against Jewish communities, the regulation of physical space for Jews in America
• The history of Jewish lawyers and organizations involved in impact litigation in cases involving Jews and others
• The legal relationship between anti-Zionism and antisemitism
• BDS and Israel boycotts on campus and by state/local governments, international boycott law as applied to Israel

If you are interested in presenting, please submit a one-page Abstract to lawvsantisemitism2023@gmail.com. Any questions can be sent to the conference organizers at dschraub@lclark.edu, rokatz@iupui.edu, and/or diane.klein@sulc.edu. Abstracts will be reviewed on a rolling basis but are due by October 1, 2023. We hope to be able to offer some travel grant support to cover expenses associated with attendance at the conference (plane/train fare, hotel, childcare) for persons who lack institutional sources of funding.

If you are interested in having your paper considered for the Law Review symposium issue, please indicate this in the abstract. Authors seeking to have their paper included in the symposium issue should have a full draft completed by February, 2023.

Law vs. Antisemitism Project Workshop for Legal Educators: Sunday, March 26, 2023

The 2nd Annual Law vs. Antisemitism Conference is part of a larger project which includes the development of a law school course in law and antisemitism and the creation of a first-of-its-kind casebook to support the course. If you are a legal educator and would be interested in participating in any part of this project, including Syllabus and curriculum development, casebook chapter creation or review, please consider arriving early to join the Workshop. If you are interested in participating in the Workshop, please indicate this in the email accompanying your Abstract, or send a separate message to Diane Kemker (diane.klein@sulc.edu) no later than October 1, 2022.

Cannibalistic Precedent-Eating Leopards

There's a darkly amusing pattern that emerges during periods of Republican governance. As a general rule, Republicans support deregulating any arena to enable maximum exploitation and abuse of vulnerable people. In particular cases, though, individual Republicans might have personal reasons for opposing such exploitation and abuse. They have a niece who is diabetic, so they support limiting the price of insulin, or they have a sibling who is disabled, so they support expanding anti-discrimination protections for the disabled, or they have a parent with cancer, so they support enhanced government funding for cancer research, or they have a friend who died of gun violence, so they support reasonable gun control regulations.

The problem, though, is that while each Republicans has their personal exception, they don't have the same exceptions. So for each exception, the Republican is left alone with only Democrats backing his initiative, and is shocked and dismayed that his colleagues could be so heartless as to not even support insulin price limits/disability protections/cancer research/gun control. They then dutifully return back to the Republican mass and vote against their colleagues' exceptions, in accordance with the general rule, and so none of the exceptions ever pass. Rinse, wash, repeat forever.

One suspects we're about to see a similar dynamic on the Supreme Court, with a 6-3 conservative supermajority that is out to draw blood. For the most part, the six right-wing votes are aligned -- like all Republicans, they are eager to jump on any opportunity to hurt the vulnerable and historically marginalized. But on individual issues, there may be an exception for a particular Justice. And that Justice will make a plea for his or her colleagues to slow down, to respect precedent, to here make an exception to the general principle of "the Constitution means what the founding fathers Texas GOP platform committee says it means". And the colleagues will say "LOL no, get bent," and the typical 6-3 decision will just be a 5-4 decision instead.

Like with congressional Republicans, the "exceptional" justice will rotate depending on the issue. On abortion recently, it was Chief Justice Roberts, whose opinions in Dobbs and Jackson were summarily ignored by his colleagues. Today, it was Justice Gorsuch on Indian law, as the Supreme Court in Oklahoma v. Castro-Huerta, over a passionate Gorsuch dissent, radically undermined tribal sovereignty and cut off a signature Gorsuch opinion from just a few years back (McGirt v. Oklahoma) at the knees.

McGirt was a 5-4 opinion which held that much of Oklahoma remained tribal land, and that therefore under longstanding Court precedent the state of Oklahoma lacks criminal jurisdiction over crimes committed by Indians in those areas. Many of us, myself included, wondered whether McGirt would survive the new regime on the Court (nobody really knew Barrett's position on Indian Law issues). But boy were we thinking too small. The Court did not overrule McGirt, it overruled Worcester v. Georgia, the famous case that respected Cherokee tribal autonomy against attempts by Georgia (with a healthy assist from Andrew Jackson) to obliterate the tribe. Nixing Worcester was not to my knowledge on anyone's radar screen. But the YOLO Court must have asked itself why it should settle for overruling a case from 2020 when you can take down a seminal Indian Law case from 1830 and neuter the 2020 one in the process? Now states presumptively have criminal jurisdiction over crimes committed by Indians on tribal land, undoing nearly two centuries of law and precedent that respected tribal sovereignty in this area.

Justice Gorsuch's dissent is quite strong -- and, in fairness, this is an area where he's been consistently excellent on. But I can't help but feel like it is one big cry about precedent-eating leopards eating his precedent, when he himself is part of the same pack of precedent-eating leopards. Yes, they're cannibalistic precedent-eating leopards and they're coming for you too. You'll do the same to one of them shortly. What sympathy do you expect here?

This teeny, tiny bit of schadenfreude is the only bright spot in yet another grim day from the Supreme Court, which just is bestowing horror after horror upon the American people.

The "Plain Text" Threshold Requirement of Bruen

One aspect of the Supreme Court's recent Bruen decision I haven't heard a lot about is the apparent caveat that its "historical tradition" test only applies in circumstances where "the Second Amendment’s plain text covers an individual’s conduct." This, of course, suggests that there are other instances where the "plain text" does not cover the conduct, in which case a different, as-yet-unknown standard, applies. What sorts of gun regulations might skirt Bruen review because they are not covered by the "plain text"?

At one level, this inquiry is specious for at least two reasons. The first is that the Second Amendment's text is the furthest thing from "plain". It is notoriously one of the least well-written constitutional clauses, which perhaps is one reason why nobody "discovered" it covered an individual right to bear arms until over two centuries after its adoption, and why even following those decisions every lower court in the country adopted a method of interpretation that the Supreme Court summarily dismissed as incorrect in Bruen. Some plainness!

The second reason is that practically speaking the rule in Bruen will not be the rule in Bruen. Rather, the rule will be "strike down whatever gun regulations conservatives don't like", and no amount of lawyerly parsing of Bruen's language is going to change that. The Supreme Court or the Fifth Circuit, salivating at the prospect of pouring more guns onto the streets, is not going to even stutter just because it encounters a reading of Bruen that appears to stand in their way. Bruen is what they say it is, and what they'll say it is is a blank check to strike down gun regulations with wild abandon. So to that extent, this entire exercise is one of false hope.

But if we play make-believe for a moment, it seems to me that the majority of contentious gun regulations are not plainly covered by the Second Amendment, even under the Supreme Court's expansive view. "Plain", after all, is somewhat of a term of art in law. "Plain error" review doesn't cover all errors, only truly obvious, slap-you-in-the-face errors. The rule that tribal courts have, in the first instance, the right to determine whether they have jurisdiction over the case comes with an exception in cases where it is "plain" that they do not, but that exception is again does not cover all cases where tribal courts lack jurisdiction -- only the clear, indisputable cases.

The Court's recent gun cases -- Heller, McDonald, Bruen -- have all involved regulations that, more-or-less, effectuate a total bar on an individual's ability to keep and bear arms (where the former seems to cover one's home, and the latter the public sphere), or at least those arms which are common in the modern era such that they are effective as means of self-defense. Everyone in Chicago, and the average Manhattanite, cannot carry a gun at all. This, the Court says, plainly is covered by the Second Amendment's text. Laws which flatly prevent either a certain type of person or a person in a particular location from carrying any sort of (modern) armament can only be justified if they fit into historical categories where such absolute restrictions had been permitted.

The examples of gun regulations which the Court says should be assessed and may pass under Bruen also are of this sort. A ban on felons possessing guns is an absolute ban on that sort of person bearing arms. Can it be justified? Yes, the Court intimates, under the historical practice of limiting gun ownership by dangerous persons. A ban on carrying a gun into a courthouse is an absolute ban on bearing arms in that setting. Can it be justified? Yes again, the Court suggests, under the historical practice of limiting arms in "sensitive places". New York's "may issue" licensing regime means that large swaths of New Yorkers, based on largely discretionary bureaucratic judgment, cannot carrying a gun in public. Can that be justified? No, the Court says, one cannot call all of New York City a "sensitive place". All of these examples represent situations where one could say that the state is trying to create an absolute gun-free space for a particular class of person or location, an endeavor which the Court could say "plainly" implicates the Second Amendment's right to keep and bear arms.

But many important gun regulations are not of this sort. Consider California's assault weapons ban, which just was sent back to a district court to assess in the wake of Bruen. Most commentators, it seems, think the relevant inquiry after Bruen is whether an assault weapons ban represents the sort of gun regulation that has a historical parallel in the relevant constitutional time period (the typical claimed parallel is to rules governing "dangerous and unusual" weapons). I would argue, though, that there's a threshold question of whether Bruen applies at all based on whether the law plainly is covered by the Second Amendment. Unlike the rules at issue in Bruen, Heller, and McDonald, the assault weapons ban does not create or seek to create a "gun-free space". Individuals remain perfectly able to both keep and bear arms that can practically vindicate their personal right of self-defense outside the home. Being restricted from bearing the particular armament of their choice is not the same thing as being blocked from keeping or bearing arms in totality. So the "plain text" does not cover the California law, and accordingly the Bruen test is inapposite.

Again, it is important to stress that the position here is not that there is no argument that Second Amendment covers a right to possess assault weapons. There undoubtedly are such arguments, and I suspect such arguments are not at all frivolous. Perhaps they're even persuasive. But again, the issue is not whether the Second Amendment covers an assault weapons ban. The question is whether the plain text covers it. That can and should be viewed as a much narrower question, just as "plain error" is not remotely coterminous with "error".

Many other gun regulations are like this. Most licensing requirements (at least, those which aren't thinly veiled pretexts for banning guns altogether), magazine capacity limits, background checks, registration requirements -- none of these plainly are covered by the Second Amendment in the way that the laws at issue in Bruen and its predecessors are, and so none of them need to be justified by resort to Bruen's test.

I also don't think that the "plain text" language can be dismissed as a cavalier rhetorical flourish.  It is included at the top of Part II of Justice Thomas' majority opinion, where he announces the new text, the bottom of Part II, where he "reiterates" the test, and the top of Part III, where he applies the test. It also is notable that the portion of the opinion where Justice Thomas assesses whether the "the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct" (Part III.A) is quite brief, because he has "little difficulty concluding that it does [protect]" -- suggesting that the law at issue here is plainly under the Second Amendment's ambit in a way that other laws might not be. The vast majority of the Court's analysis applying the new test is not concentrating on whether the conduct is covered by the "plain text" (which it views as easy, in keeping with "plain" being "plain"), but on whether any of the historical examples of permissible gun regulations nonetheless warrant New York's statute. Again, this indicates that we are in the realm of a "plain" imposition on the Second Amendment; which in turn suggests that "plain text" is not superfluous verbiage.

I might even argue that treating "plain text" as a threshold requirement is necessary for Bruen's internal logic to make any sense at all. Bruen styles itself as a originalist/textualist opinion, but the "historical practices" test is embarrassingly atextual along two dimensions: (a) one could stare at the text of the Second Amendment indefinitely and never derive the test from it, and (b) looking at "historical understandings" is not the same thing as seeking to uncover the semantic meaning of the Second Amendment's words as they would have been understood at the time of ratification (which is what contemporary originalist textualism claims is its project). But if we view Bruen as doing what it says and only applying in cases where a gun regulation plainly is covered by the Second Amendment -- laws which seem to entirely prevent certain persons or places from being occupied by guns that practically can provide personal self-defense -- then the "historical practices" test makes a bit more sense from an originalist perspective. A pure textualist might struggle to justify even, say, the ex-felon ban on possessing weapons -- are they not "plainly" being deprived of the ability to keep and bear arms? Yes they are! But knowing that the framers did endorse at least some laws that incontestably limit certain persons' ability to keep and bear arms suggests limits on the original understanding of what the Second Amendment says that might otherwise be hard to square with the Amendment's "plain text". The utility of Bruen's test is considerably less apparent, however, in circumstances where there is not a "plain" imposition on the right to bear arms. In such cases, "historical practices" risks becoming a license for courts to cut bloody swaths through any law which happens to touch on the subject of guns whenever a suitably analogous regulation cannot be found (even when the reason it cannot be found is because the problem is novel and could not have had an obvious early-American analogue).

So I think there is good reason to view "plain text" as a threshold requirement before a court applies Bruen, and that many regulations which are categorized as "gun control" are not covered because they do not "plainly" impinge on the right to keep and bear arms. Indeed, if we take this seriously -- which, I again hasten to clarify, we almost certainly should not, because there is no way Bruen will serve as a license for gun regulation in any circumstance where conservatives don't want it -- Bruen could mark out a very interesting compromise: laws which "plainly" impinge on the Second Amendment (which is to say, seek to effectuate a total bar on possession of guns by certain people or in certain places) are subjected to the "historical tradition" inquiry. Laws which regulate guns but do not plainly fall under the Second Amendment's ambit (insofar as they leave space for significant practical ability to keep and bear arms) get rational basis review. That might actually be a compromise I could live with. 

But of course, this Court has not remotely signaled interest in compromise. Its maxim is that the strong take what they may, and the weak suffer what they must, and right now they are reveling in right-wing strength. So as much as I enjoyed this frolic into a fantasy where judges are constrained by law, in the real world I suspect the rule in Bruen will be whatever the far-right wants it to be.

Things People Blame the Jews For, Volume LX: Islam

Haven't done one of these in awhile, but then, sometimes the universe doesn't give you an option. Behold: 

I'm going to call it: "Islam is a Jewish conspiracy" might well be my favorite antisemitic conspiracy.

Top that if you dare.

Voting Isn't Enough. You Also Have To Vote Enthusiastically

For the past several years, a battle has raged within the progressive commentariat about the importance of voting. In 2016, quite a few influential left-of-center figures were very public about how they would sit the election out, or vote third party, because they just could not bring themselves to support Hillary Clinton. This approach is sometimes dubbed the "consumerist" theory of voting, where politicians are products you either like or don't like, and if you're not happy with the product, you don't buy it.

This approach seemingly was discredited by the 2016 election results (spoiler: it was also discredited before the 2016 election results), though a surprising number of people were insistent for years thereafter that they were entirely right and correct to sit out 2016. Voting is for suckers, voting doesn't change anything, voting is a distraction from something something grand proletariat revolution something. Incredibly, we're still seeing a permutation of this argument now, as people respond to Republicans reaping the fruit of their electoral success by literally arguing "I tried voting in 2020 and it didn't work". I barely know how to even respond to that level of narcissistic self-indulgence. Politics is hard. It's slow, and arduous, and often a game of inches, but it definitely won't be won by people who think that the failure to travel lightyears in a day means they're entitled to sit out in protest.

That said, over the past few days I have noticed a bit of a shift amongst people I'd broadly define as occupying these sectors of progressive politics. They no longer say they won't vote in 2022. Instead, they issue long screeds contemptuous of voting and decrying voting and insisting that voting won't bring any useful change or benefits whatsoever. Then, somewhere in the middle of the diatribe, they will, with all the enthusiasm of a petulant child, agree that they will vote in 2022, but they won't like it and you can't ask them to like it, but if it will finally make you shut up okay they'll agree to vote.

Progress, of a sort. But not good enough.

The consumerist theory of voting treats voting as a matter of individual expression. This new permutation still fits that mold, only now voting only matters as a sort of civic duty checkbox one individually marks off (albeit reluctantly).

But the reason voting matters isn't to express your deepest emotions nor is it to validate one as  having satisfied an individual civic duty. The reason everyone is saying voting matters is because we need to win these elections in order to secure the changes we want, or at the very least to prevent things from deteriorating even worse. Democrats retaining control of government in 2022 might not be sufficient to arrest the damage the Supreme Court is doing to our public life, but it sure as hell is necessary. So your obligation isn't just to vote for Democrats, it's to take the steps necessary so that Democrats win. And one such step is projecting a sense of excitement about the prospect of Democrats winning.

 ("Excitement", to be clear, is being used here as a somewhat imprecise catch-all term encompassing any number of affective dispositions towards Democrats winning that view that outcome as a substantial positive and the opposite outcome as a substantial negative. So I would count "excited at Democrats winning" and "terrified at Republicans winning" as both falling into the relevant category; either way, someone who affectively holds those views should be enthusiastic in pulling the lever for Democrats come November. Perhaps "motivated" is better than "excitement"; insofar as it captures the sense that you care, deeply, about the outcome of the election. In any event, I doubt it matters too much what exact form that affective disposition takes, so long as it is in this broad category of substantial positive, as opposed to the sulky "I'll do it but it won't matter").

It is a truism to say that one vote rarely makes a difference. Voting matters as a collective endeavor where we unite to exercise power and self-determination together. Our decision to vote, and whether we do so enthusiastically or view it as a grim chore, influences those around us, and so has a multiplier effect that extends will beyond our one vote. 

People are more likely to vote if their friends and neighbors vote, and they're even more likely to vote if their friends and neighbors are excited about voting. Anybody who is talking about voting on Twitter almost by definition is on the bleeding edge of heightened political engagement, which in turn means they are well-positioned to influence multiple others in their circle who are more likely to fall towards the fat part of the bell curve of political apathy and are highly responsive to cues from their social environs. Your vote matters, but your affective disposition towards voting as a means of effectuating change also matters and arguably matters even more. Every voter has one vote, but the publicly excited voter carries in their wake the votes of a dozen friends and acquaintances. The publicly downcast and reluctant voter sheds a similar number of votes.

"I'm sorry, but I can't fake enthusiasm." Yes, you can! You shouldn't need to, in many ways I'm blown away that anyone needs to "fake" feeling positively disposed to Republicans not gaining another hammerlock on power, but yes, you absolutely can fake enthusiasm. Indeed, I'd argue that in the present moment it's self-indulgent not to. You're willing to call for a general strike but you're not willing exaggerate a smile to win an election? Are you kidding me? Sulking is not a strategy.

Voting is a tactic, and our obligation now is to take the steps most likely to make that tactic successful. One of those steps is being publicly enthusiastic about voting, so that other people who are less politically engaged than you also find the prospect of voting to be something worth doing. My basic rule of thumb here is that if you're politically engaged enough to be publicly complaining about how unfair it is that people are asking you to vote again, after you already tried that two years ago, then you're politically influential enough to carry the responsibility of publicly orienting to voting in such a way so as to maximize its likelihood of success.

This doesn't mean one doesn't pressure Democrats to do more or do better when they have power. I have hardly been blown away by the immediate Democratic response to the fall of Roe, though in part I think that's because Dobbs was a huge defeat and huge defeats are rarely pretty. There is no elegant way to lose in crushing fashion (I view the chaos after the Afghanistan withdrawal in much the same way). Nonetheless, I do not at all dispute there are plenty of criticisms one can make at the Democratic leadership in their immediate response to Dobbs. But it is entirely possible to level these critiques while also maintaining an affective disposition of strong positivity towards Democrats winning elections. Every bit of frustration I have towards Democratic decisions while in office - and there are plenty -- has not dampened in the slightest my strong and unwavering view that Democrats winning elections is far, far better than Democrats losing elections, and that we should view any moment where Democrats win and Republicans lose with absolute elation.

And guess what? Enthusiastically voting doesn't stop you from enthusiastically going to protests, or enthusiastically supporting a mutual aid organization, or enthusiastically engaging in a union drive, or enthusiastically taking any number of other steps which might also be part of the collective endeavor of building power to effectuate positive change. It's not either/or, nobody is arguing that it is either/or, and using that false dichotomy to justify your sulky attitude towards participating in electoral politics isn't fooling anyone. So buck up, and get excited about winning in 2022. Fake it if you have to, or do what I do and find genuine enthusiasm for the prospect of fending off America's slide into fascism. Either way, you do what it takes to win.