Skip to content

The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

Category Archives: Uncategorized

This is the unintended third part of my two-part post on the KKK-like Sons of the Serpents’ second Marvel appearance in The Avengers #73-4 (February-March 1970). As discussed, the story arc features two political TV celebrities, one white, one Black, secretly masterminding their “racist act” to manipulate the American public and gain powers for themselves.

Although artist Frank Giacoia’s Dan Dunn is not necessarily a portrait of William F. Buckley, Jr., the character seems to be his fictional counterpart.

Buckley’s PBS show Firing Line began airing weekly debates in 1966, at first with Buckley and his guest at distant podiums, but later in swivel chairs with feet sometimes touching. “Buckley designed the program to convert viewers to the conservative cause,” writes Heather Hendershot, and his “intention was to debunk the principles of Black Power,” since “to him, it represented the very worst of left-wing radicalism” (2014).

Buckley conceived the show after debating “The American Dream is at the expense of the American Negro” with James Baldwin in Cambridge in 1965. Though Black guests on Firing Line were an exception, Buckley debated “Where Does the Civil-Rights Movement Go Now?” with James Farmer in 1966, “The Ghetto” with Kenneth Clark in 1967, and in 1968, “Was the Civil-Rights Crusade a Mistake?” with Godfrey Cambridge, “The Black Panthers” with Eldridge Cleaver, “The Republic of New Africa” with Milton Henry, and “The Negro Movement” with Muhammed Ali.

Roy Thomas places the events of The Avengers #73-4 after the July 20, 1969 moon landing (“as the biggest audience since the moon landing hears an exchange of even more importance to the home of the brave!”), and the February cover-date suggests that scripting began in fall of 1969. Though C. Eric Lincoln appeared on Firing Line in June to debate “Afro-American Studies” and John James Conyers in October to debate “Race and Conservatism,” neither the sociologist nor the congressman seem to be a counterpart to Marvel’s Montague Hale. Of Buckley’s guest list, Hale bears a close resemblance to Cleaver, though Hale has a tie, not an open collar. The resemblance is overt in #74 where Hale’s beard is most clearly a goatee.

Sal Buscema also took over from Giacio that issue and so presumably imitated Hale’s original design, while also sharpening the resemblance to Cleaver. Giacio sometimes drew what appears to be a full beard.

Still, it seems Buckley was the primary target of Marvel’s critique, balanced by a far more fictional Black foil. Hale is the host of “Black World,” a show with no real-world counterpart. According to Hendershot, “Black Power leaders were covered by TV news as crazed radicals,” and ironically “Firing Line provided an uncensored window into the movement that was difficult to find elsewhere on TV” (2014). Marvel’s critique then is not that Buckley was using media to promote his own conservative causes, but that he was doing so by providing a forum for “equally controversial” disagreement.

Buckley rarely invited guests back (Barry Goldwater appeared in 1966 and again in 1969), and never for three consecutive episodes as Dunn does with Hale. That’s because Marvel refigures their Buckley stand-in as a “late night host.”

The format was growing increasingly popular. In 1968 and 1969, the 11:30-1:00 time slot featured Johnny Carson on NBC and Joey Bishop on ABC, soon joined by Merv Griffin on CBS, that network’s first entry in the genre. Giacoia and Buscema do not draw Dan Dunn behind talk show host’s desk, but the small round table and its array of papers, ashtrays, and water glasses is only a slight variation and also a closer approximation to the Firing Line set. Thomas’s narrator explains that Dunn works for a “rival network,” and “Thus it was inevitable that the two giants would meet, as millions of insomniac Americans watched…!”

No real-world late shows reached the top fifty Nielsen rating slots in 1969, and the top show attracted an estimated 15 million viewers, compared to the 53 million who watched the moon landing. Hyperboles aside, Marvel seems alarmed by the increasing media reach of TV, and imagined an amalgam of Firing Line, late night shows, and record-breaking viewership as a potential threat to U.S. society. Instead of creating a new supervillain to personify that threat, Lee and Thomas revived Lee’s obscure KKK stand-in that had gone unused for four years. Thomas also revived Lee’s original unmasking plot twist in order to satirize both Buckley and his Black Power guests, most specifically Black Panther Eldridge Cleaver. Lee was also uncomfortable with the character Black Panther sharing a name with the organization and wanted to portray his Black Panther opposing an actual Black Panther Party leader.

Lee would later attempt to divide the superhero from the political group further by renaming him “Black Leopard” in Fantastic Four #119 (February 1972) with Roy Thomas scripting a politically moderate explanation: “I neither condemn nor condone those who have taken up the name — but T’Challa is a law unto himself!”

The change was brief. When the character received his first series beginning in Jungle Action #10 (July 1974), he remained Black Panther.

Captain America #126 (June 1970), published three months after The Avengers #73-4, also offers a thematic epilogue to the Buckley-Cleavage story.

Stan Lee, with pencillers Gene Colan and John Romita (and Frank Giacoia now inking), brings Falcon back for a single issue after a six-month absence.  Captain America returns to Harlem to find that Falcon is wanted for murder, but he knows the allegations must be false: “He dedicated his life to fighting for justice … to helping his people … to helping anybody who was oppressed!”

Falcon soon explains that he’s been framed by a gang called the Diamond Heads: “They’re like a black version of the Klan! All they preach is hate whitey! They’re dangerous fanatics! They don’t care who suffers … or who gets hurt! They can set our progress back a hundred years!” Lee’s words are especially memorable because he scripts them in the talk bubble Colan draws above Falcon while he is changing into Captain America’s costume to elude the police.

Reversing the Sons of the Serpent plot twist, the heroes reveal the leader, Diamond Head, to be a White gangster: “The worse it got … the sooner we could take over!”

Captain America laments: “Your Diamond-Head hoods didn’t even know – they were being used!”

After Captain America calls him “amigo,” Falcon concludes the issue: “Your skin may be a different color … but there’s no man alive I’m prouder to call … brother!”

That’s the kind of ending Lee wanted on Firing Line, but that Buckley would never provide.

Tags: , , , , , , , , , ,

The new Shenandoah is live. I’ve served four years as comics editor now, and each issue has been an expanding preliminary response to the question: What is a literary comic?

I still don’t have a complete answer yet, but I know that checking Shenandoah‘s submission page won’t help. In order to throw the widest net of possibilities, the portal guidelines include no definition, only an aside that comics “can be in black and white or color” (which is more about technology than aesthetics).

But in one sense, the question is easy. If defined by medium, a literary comic is any comic published by a literary publisher. Since Shenandoah is a literary journal, anything listed under “Comics” in the table of contents is a literary comic. The new issues features nine by six creators:

I suspect some viewers would not consider everything on that list a comic. That’s partly because “comic” has multiple overlapping meanings. For the purposes of Shenandoah, I happily entertain them all, requiring no common denominator other than image-based composition.

I recently published a book titled The Comics Form, but not all of these publication-defined literary comics are in the comics form (which I define as sequenced images). David Sheskin‘s, for instance, is a single image (and so not sequenced):

Neither are Sarah J. Sloat‘s four erasures. Each combines words (left exposed from an otherwise obscured page of text) with collaged images. If the collage is perceived as a set of distinct images, then they could also be sequenced and so in the comics form. I happen to perceive each page as a unified whole.

Formally, Kathleen Radigan‘s five-page “The Cloud” behaves more like a traditional comic — even though it is also a collage, combining drawings and photographs for a pleasantly discordant stylistic effect.

In her two-page “Prairie Psalm,” poet Despy Boutris explores the edge of minimalistic style, rendering her speaker as a stick figure within a 4×4 grid (which coincidentally was Joe Shuster’s layout preference in 1939 Action Comics).

Richard Bonhannon avoids human figures entirely, rendering his family memoir in maps in his twelve-page “The World Is Not My Home.”

At yet another stylistic extreme, Sija Ma‘s 35-page photo essay consists entirely of photographs, with no text. I suspect many viewers would not consider “A Hundred Stories” to be a comic, but since photographs are images and the images are sequenced, it is in the comics form.

Taken together, I don’t think these new works produce a coherent definition for “literary comic.” Fortunately, that’s not the goal, but it may be an eventual side effect as Shenandoah continues to publish two issues each year.

The next will be guest-edited by José Alaniz:

So please stay tuned!

Tags: , , , , , , ,

Last week I focused on The Avengers #73 and the second appearance of the KKK-inspired supervillains Sons of the Serpent. The story arc continues in #74, but first Black Panther asks the celebrity singer Monica Lynne not to appear on bigot Dan Dunn’s TV show again with Black activist Montague Hue.

Black Panther: “I’m asking you as a soul brother!”

Monica Lynne: “Soul Br ..? Then you … Why haven’t you let anyone know before?”

Black Panther: “I thought it was enough to be just a man! But now I know it’s time to stand up and be counted!”

Lynne’s surprise was surprising to me, but it reveals the significance of Black Panther’s costume design. Unlike every other member of the Avengers, his race is ambiguous.

Jack Kirby’s original 1966 Black Panther cover premiere featured the more common superhero mask that exposed the lower half of his face, but was replaced by a full mask presumably for fear of anti-Black backlash. The reverse extreme of the skin-exposing hypersexualized costumes of Black male superheroes, the skin-obscuring became a secondary trend and later included James Rhodes Iron Man, Milo Norman Mister Miracle, and Spawn.

Thomas scripts Goliath (who is Clinton Barton, AKA Hawkeye, during this Avengers period) a King-echoing justification:

“T’Challa only hid the fact that he was black because he wanted to be judged as a man … not a racial type!”

After Black Panther is captured while infiltrating the Serpents, they send out a false Black Panther to victimize “businesses owned by known supporters of the ultra-rightists,” leading to “Speculation that he is both black … and the vanguard of a new type of marauding militant!”

Thomas seems to be reprising to Lee’s 1966 plot in which the Serpents captured Captain America and replaced him with an imposter. The difference emphasizes the fear of racial division driving the story: the fake Captain America was also White and voiced White supremacist rhetoric, and the fake Black Panther appears to be Black (the White imposter wears two masks, the black mask of the Panther costume and also a Black mask indistinguishable from T’Challa’s face) and voices anti-White rhetoric:

“No Black American can rest … while a White American lives!!”

Despite the splash page motto, the White supremacist goal is no longer to drive out foreigners:

“The Serpents want to start a civil war … to set black against white!”

Buscema draws the real and unmasked Black Panther in literal chains shouting, “I shall be free!,” an allusion to slavery and the Civil War.

The Avengers expose the scheme on live TV, revealing that the organization is run by two Supreme Serpents, Hale and Dunn, a Black man and a White man working together.

Dunn: “Of course, you costumed cretins! Did you really fall for our racist act? Were you as misled as the fawning sheep who fed upon our every epithets?”

Hale: “Did you truly think we cared for anyone … for any cause … except power for ourselves??”

Thomas makes Hale’s villainous sentiment echo Lynne’s earlier attitude of selfish indifference. It’s unclear whether Hale intended her to die earlier, or if the attack was orchestrated as manipulation. Either way, Lynne reflects afterwards to Black Panther:

“If only we could undo the harm which a man like Montague Hale has done to … my people! How many minds can a viper like him poison against our cause?”

No one condemns Dunn.

The harm Hale has done to Black people could be understood in two ways. The poisoned “minds” could be White minds now prejudiced against the cause of Black people due to Hale amplifying violently anti-White militancy, or they could be Black minds now prejudiced in favor of that militancy and so against what Thomas implies is the legitimate cause of Black people.

Since Black militancy is linked to Black selfishness, Thomas can’t allow Lynne to return to her initial selfish indifference or to her more recent selfish militancy (including criticizing well-intentioned police), and so he instead has her voice a different cause in the final panel:

“Maybe I’ve lost a singing career tonight … … and gained a new career … a worthier purpose …!”

Black Panther, a slavery-evoking chain sill around his neck, echoes: “so has the Black Panther!!”

The story arc then is Marvel’s lesson for Black people not to direct their political activism in what Marvel considered the wrong way: against police and White people. Since the right way, the “worthier purpose,” is evoked but not detailed or even named, what matters is to not increase national division, regardless of how the national status quo affects Black people.

Finally, one very minor mystery solved. When I first blogged about Sons of the Serpent’s debut in The Avengers #32-33 (September-October 1966), I mentioned that the Marvel Database included this note:

“The plot twist at the end of this story is in extremely poor taste. Having a foreigner who had been a victim of racist violence be revealed to be the mastermind behind it all undercuts the presumed message of racial tolerance and quite literally blames the victim of racist violence for what happens to him. Hawkeye’s final comment (“Boy, if ever there was an undesirable alien, it’s him.) actually SUPPORTS the Sons of the Serpent’s racist attitudes. Even more unfortunately, it’s a plot twist that seems to get repeated whenever the Sons of the Serpent appear.”

Hawkeye’s comment doesn’t appear in that issue, but it does in the two-page summary in The Avengers #73. Or it almost does. According Thomas, Hawkeye said: “If there was ever an undesirable alien, this cat is it!”

The “victim of racist violence” also describes Hale. I agree the anti-progressive plot twist is in “extremely poor taste,” but more specifically it serves Marvel’s message of political moderation during a major period of Black activism.

“The End?” asks Thomas’s narrator in the final panel. “Hardly..!”

Tags: , , ,

I began a series on Marvel’s 1966 version of the KKK in two posts (here and here) last spring. Here’s the next installment.

Sons of the Serpents make their second appearances in The Avengers #73-74 (February-March 1970). In the four years since the white supremacists debut, Marvel had introduced only one additional Black superhero, the Falcon in Captain America #117-120 (September – December 1969). Black Panther, who also premiered in 1966, made occasional 1967 appearances in Fantastic Four and Captain America episodes of Tales of Suspense, before Marvel added him to The Avengers beginning with #51 (May 1968), where he appeared in every issue but #72, immediately preceding the Sons of the Serpents return.

Black Panther’s presence in the series reverses the creation of Bill Foster, a Black character introduced in response to the white supremacist villains for The Avengers #32, suggesting instead that scripter Roy Thomas revived the Sons of the Serpents in response to the pre-existing Black hero. Either way, a white supremacy story requires a central Black character to be legible in an otherwise all-white context.

Thomas, along with artist Frank Giacoia and editor Stan Lee, were also responding to national politics. The murders of two of the most prominent Black leaders, Malcolm X in 1965 and Martin Luther King, Jr. in 1968, coincided with the end of significant civil rights legislation.

The Fair Housing Act, passed in the senate largely in response to King’s death, was the last. Also, only months after both Black Panther’s and Sons of the Serpent’s 1966 premieres, Huey P. Newton and Bobby Seale founded the Black Panther Party in October 1966.

The organization did not uphold the nonviolent, integrationist rhetoric and tactics of King’s Southern Christian Leadership Conference, instead endorsing self-defense against the KKK and the anti-colonial resistance of Frantz Fanon.

New York city, the home of Marvel creators, saw riots in the summers of 1967 and 1968. The first was triggered by a police officer killing of a Puerto Rican man armed with a knife, and was one of dozens of similar riots across the country. The second was triggered by King’s murder and extended across the country too. The Kerner Report, the Johnson-appointed commission’s investigation into the causes of the 1967 and earlier riots, had been praised by King and became a national bestseller following his death.

The commission concluded: “What white Americans have never fully understood — but what the Negro can never forget — is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it” (2).

The return of Marvel’s KKK-inspired Sons of the Serpents seems less about the KKK as an organization and more about its generalized legacy. Though overt support for the Klan was low, it remained popular in a different sense. Defining “Klan mentality” as “an acceptance of what has been the Klan ideology without identifying oneself with the Ku Klux Klan or without even being aware that one’s prejudices form the core of Klan thinking,” Richard T. Schaefer concluded in 1971 that “although no longer an effective and viable force in American life, the Klan mentality remains, if not thrives today” (144).

The Avengers #73 opens with a splash page meeting of the Sons of Serpents, with Thomas repeating Lee’s earlier and intentionally illogical White supremacist rhetoric: “As the first serpent drove Adam and Eve from Eden … so shall we drive from this land the unfit … the foreign-born … the inferior!” Two pages later the terrorists bomb an office building housing New York’s Equal Opportunity Bureau and then assault Montague Hale, host of the fictional TV show “Black World,” after he calls for an investigation. Dan Dunn, “an equally controversial late-night host” who Hale calls “the foremost bigot in America,” invites Hale onto his own show, prompting “millions of viewers [to choose] sides between the two men depending upon their previous prejudices.”

The Kerner Commission had warned: “Our nation is moving toward two societies, one black, one white—separate and unequal.” Lee, Thomas, and Giacoia present the division, not the inequality, as the primary threat. Thomas scripts the contrasting thoughts of two white cameramen, dramatizing the division between white viewers: “Dunn’s really givin’ it to that trouble-maker .. and more power to him!” and “If a crumb like Dan can top the ratings … a show called ‘Son of Hitler’ oughtta be a smash!”

In the next issue, after Halen and Dunn nearly exchange punches while shouting “Communist!” and “Racist!” at each other, a man at the control board reacts: “Holy crow! The way those two’re gon’ at it, we better switch to commercial break fast! Can’t blame Dunn, though … the way that Hale guy was mouthin’ off! I’d like to punch ‘im out myself ..!”

The second man at the control board (Giacoia only includes the back of his head, so his race is ambiguous in my black and white reprint) responds: “Not while I’m around, friend! For my money, Hale’s just tellin’ it like it is!”

The division extends to the Avengers. After he returns from a previous adventure and his teammates explain, Black Panther responds: “I don’t know which is worse … the Serpents themselves, or TV shows like one you’ve described to me! A bigot like Dan Dunn can be the torch to enflame an entire nation!”

Wasp answers: “To tell the truth, T’Challa, I found Montague Hale something less than civil!”

Despite the division, Black Panther expresses his hope, and the story’s message, “that both sides realize they have responsibilities which match their rights!”

The plot also centers around Black singer Monica Lynne, who initially expresses a disinterest in politics, refusing Hale’s urging: “A girl with your future could do a lot … for the right cause!”

“I’ve got a cause, friend … Her name is Monica Lynne!”

“You can’t mean that, girl! After what the establishment’s done our people … after what the Sons of the Serpent did to me …!”

“None of what you’ve been talking about concerns me!”

Lynne changes her mind after she is attacked and nearly murdered by Sons of the Serpent. Black Panther intervenes as she shouts: “The police! My God – why don’t the police come?”

When white officers do arrive, one asks: “Any idea of why the Serpents should single you out, miss?”

“The name is Monica Lynne! And my skin is reason enough … for vermin like that! What I want to know is, where were the police until the danger was over? Did you want to dirty your hands … to rescue a black girl?”

“We do our best, lady … but we can’t be everywhere at once! You’ve got to understand …!”

“Perhaps I do understand … better than you want me to! Excuse me, please! I have to call a man … about a cause …!”

It’s not entirely clear how the authors intend viewers to receive Lynne’s reaction to the police. One officer seems dismissive at first, “Take it easy, lady … no need for hysterics now!,” but that may reflect general misogyny rather than racial indifference. The officer also adds, “We came running as soon as somebody reported all the shooting!,” and sure enough Giacoia draws him in a wide-gate run, baton in hand. Thomas may also be referencing the incident of racial violence that introduced the Sons of the Serpents in 1966. There, Lee’s narrator disparaged white neighbors for not calling the police, but in Thomas’s reprise, “somebody” has performed that civic duty. It seems likely then that we are to understand Lynne’s criticism of the police as unjustified—though not so unreasonable as to make her character unsympathetic.

Lynne appears on the next airing of The Dan Dunn Show with Hale, explaining why she was attacked by white supremacists and left unprotected by police: “Because my skin is black in a country that wants to keep itself lily-white!”

(More next week!)

Are social-media memes comics?

You might be surprised how often that debate erupts on the comics scholars listserve. There are two short answers:

  • If by “comic” you mean a work in the comics medium (which is defined by publication context), then: No.
  • If by “comic” you mean a work in the comics form (sequenced images), then: Sometimes.

Though most memes include words, most are not in the comics form because each tends to be perceived as a single unified image (and so therefore not as sequenced images). Here’s an example featuring a local candidate in my town:

The meme consist of one image (a screenshot from a candidate forum video) and three sets of words: the “Chamber of Commerce” (captured in the screenshot), the quoted words (in response to a question about how city council candidates would address local childcare needs), and a name.

The word-image relationships are so common, they likely go unnoticed. The juxtaposition of the quoted words imply that they are being spoken by the figure (who appears to be speaking), and the juxtaposition of the name to both the quoted words and the speaking figure implies that it identifies both.

I don’t think anyone would describe the meme as a sequence of images. Though some works in the comics medium are similar (one-image cartoons in newspaper comics sections are formally the same), the meme is not a “comic” in that sense either.

Analysis gets more complicated when memes have multiple image parts in addition to words, and those parts tend to be viewed in a certain order and so in a certain sequence. The above meme is the most recent and (I hope) last political meme I make this election season. The one below was the first. I designed it after learning that the above MAGA candidate was running for office:

The meme is a single page (I want to say “digital canvas,” but that sounds pompous even though it’s more accurate), but it breaks into three conceptual units divided by white space identical to the white background. If I had framed each unit, the meme would more clearly be in the comics form:

Since any sequence of (at least two) images is in the comics form, the meme is in the comics form, and so is (formally) a comic. It is not, however, in the comics medium (I posted it on Facebook), and so I suspect most viewers would not call it a comic. I wouldn’t either. I would call it a work in the comics form, which is less catchy than “comic” but hopefully clearer.

As with the first meme, the word-image relationships are so straightforward they likely go unnoticed. The words and the images in the first panel duplicate. The “3 open seats” and the image of three identical chairs refer to the same subject. Both are also metaphorical, since “seats” and the photograph of chairs are not what’s “open,” which is abstract (an elected government position defined by duties and a duration of time).

The second conceptual panel is straightforward too: the words and images duplicate again. Each photograph represents a candidate, and the words under the photographs are their names. Though most viewers (even ones from my very small town) don’t know what each candidate looks like, most probably assume that the order of left-to-right photographs and the order of top-to-bottom names correspond. That assumption is reinforced by the frame around the fourth photograph and the letters of the fourth name both being red — as well as the shared blue frame around the first three photographs and the blue letters of the first three letters. The election context also likely translates the two colors, blue and red, into a political dichotomy: Democrat/Republican.

The third conceptual panel frames only words, so there is no image-text relationship. Still, the words establish the point of the meme, that like-minded voters should vote for the first three candidates and not the fourth. While that’s probably obvious, notice how that message is not conveyed by the words alone:

  • “There are 3 open seats on Lexington City Council. There are four candidates: Nicholas Betts, Chuck Smith, David Sigler, Collette Barry-Rec. Beginning September 23rd, you can vote for three of them.”

Read (rather than viewed) the meme is politically neutral.

It also helps that the first three photographs have similar content (headshots), while the fourth is a medium shot of a person holding up a handmade protest sign with the message in red letters, “TRUMP LOVES ALL PEOPLE,” and a smiley face. I suspect that even a viewer who did not read the protest sign would glean that the meme was supporting the other three candidates — even though none of the words (including the ones in the photograph) state that.

Like a joke, I think all of this is both obvious and understood instantaneously. Also like a joke, explaining it feels redundant and the opposite of funny. But I’m an academic, so that’s pretty much my job description.

Next meme.

The first two examples both clearly include at least one image, making them at least potentially comics. But does this one include an image?

The middle section includes the only four elements that are not words: a frame, three white ovals, an outline oval, and a thin rectangle that seems to block most of a name. If you perceive those elements, plus the three names and fourth obscured name, as representing a ballot, then they are an image. Because the rest of the meme includes only words, the overall meme is not in the comics form.

In this case, the words alone convey the message. I’m not sure if a crossed-out word is primarily a word or primarily an image, but adding it doesn’t significantly alter anything:

  • “50 Ways Rockbridge supports David Sigler, Chuck Smith, Nicholas Betts, Colette Barry-Rec for Lexington City Council. Early voting starts September 23rd.”

Since the names are ordered as they appear on my town’s actual ballots, the meme is also instructive, showing voters how to fill-in the ovals for the first, second, and fourth candidates. (Though it’s not necessary to cross out the name of the third candidate, it won’t hurt.)

The next meme is not in the comics form:

And yet it reveals something key about words: they’re images too. The visual styles of the six word renderings are the most significant elements of the meme. First, words in English (like layouts in the English comics medium) are read left-to-right and then top-to-bottom (AKA, the z-path). Yet if that common-sense fact is applied here, you get this:

  • “BETTS LEXINGTON SIGLER CITY COUNCIL SMITH”

I don’t think anyone reads them in that order. I’m pretty sure most readers instead experience this:

  • “Betts, Sigler, Smith [for] Lexington City Council.”

Why? Because three of the words are large and blue, and three of the words are small and black. The visual style reorders them and determines their combined meaning. Style then isn’t just some additive quality working separately from word meaning. It can rewire the most fundamental language norms.

A last variation:

If we apply the blue then black rule again, you get this:

  • “Betts Sigler Smith Vote Lexington City Council Now.”

Reverse the color rule and it’s this:

  • “Vote Lexington City Council Now Betts Sigler Smith.”

I don’t think readers experience either. I suspect it’s probably this:

  • “Vote [for] Betts, Sigler, Smith [for] Lexington City Council Now.”

Or, since the first and last words are largest and may be apprehended together, this:

  • “Vote Now [for] Betts, Sigler, Smith [for] Lexington City Council.”

Where the first version created a definitive word order that determined sentence meaning, the expanded variant may allow for some indeterminacy. Either way, how each word is rendered is the determining factor. And the ordering effect isn’t a visual puzzle. Our brains perform it at a mostly pre-conscious level of perception.

I suspect it occurs almost as quickly as decoding the unremarkable order of these words:

“Conceptual art,” according to the art-term entry on the Tate website, “is art for which the idea (or concept) behind the work is more important than the finished art object. … a conceptual artist uses whatever materials and whatever form is most appropriate to putting their idea across – this could be anything from a performance to a written description.”

I accept that broad scope to include Supreme Court Justices, who routinely include descriptions of imagined works in their opinions. My favorite was written by Justice Breyer for the majority Google v. Oracle. While making a point about copyright infringement, Breyer refers to “one of the world’s shortest short stories,” and then apparently includes it: “When he awoke, the dinosaur was still there.”

During the oral arguments for Warhol v. Goldsmith on October 12th, three more Justices described conceptual artworks. I have taken the role of artist assistant and rendered each based on the written descriptions from the court transcript.

.

Go Orange Prince by Clarence Thomas

Justice Thomas:

“Let’s say I’m a Prince fan … [and] also a Syracuse fan and I decided to make one of those big blow-up posters of Orange Prince and change the colors a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me?”

.

Chromatic Yellow by John Roberts

Chief Justice Roberts:

“There are artists whose work consists of single color within a frame, right? Mondrian, Albers. Let’s say somebody uses a different color. The original is blue and the allegedly copyright-violation work is yellow. If you’ve got art critics to come in and say that blue sends a particular message, yellow sends a different one, would that satisfy any claim of copyright violation?”

.

Happy Prince by John Roberts

Chief Justice Roberts:

“Let’s suppose that—I think you can do this with technology—instead of the mood that Prince is conveying in the Goldsmith photograph, you put a little smile on his face and say this is a new message. The message is, Prince can be happy. Prince should be happy. Is that enough of a transformation? The message is different.”

.

Red Dress Mona Lisa by Samuel Alito

Justice Alito:

“Well, suppose that the Mona Lisa was copyrighted and somebody, a real — really skillful copyist, made almost an exact copy. Most people could never detect the difference, except the — the copyist changed the color of her dress. If you showed those two to most people today, they would say, well, all right, brown dress, blue dress, red dress, doesn’t make any difference, right?”

.

The Justices conceived their four conceptual works for the purpose of determining whether Warhol’s Orange Prince infringes on Lynne Goldsmith’s photograph of Prince:

To that degree, they are depressingly bad works of conceptual art.

Here’s why:

Fair use doctrine includes four factors. Thomas’s poster explores the first, “The Purpose and Character of the Use,” and the third, “The Amount or Substantiality of the Portion Used,” questioning whether the change of use (Warhol’s Orange Prince is a work of fine art meant for art galleries, Thomas’s “Go Orange Prince” would be mass-produced football-game paraphernalia meant for stadiums) is sufficiently transformative despite the verbatim reproduction of the image.

I think the answer is a fairly obvious no.

I discussed in a recent post that the Court is likely to sidestep the most pressing question: “artists need to know what is and what is not adequately transformative when developing artwork from a source image. … I predict they dodge the needed work of determining a standard for meaningful transformation.”

Thomas’s conceptual art, because its degree of factor-three transformation is essentially zero, suggests no new insights on that core challenge.

Roberts doesn’t do any better.

It doesn’t help that Roberts references the wrong artist (the above 1961 Blue Monochrome is by Yves Klein, definitely not Piet Mondrian or Josef Albers). Worse, his line of questionings yields nothing new about transformativeness. I’m pretty sure Thomas was thinking about the minimum level of transformation, which is at least a starting point. Maybe Roberts was approaching from the opposite end of the spectrum, since his conceptual piece is 100% transformative, deriving literally nothing from Klein since every drop of paint would be a necessarily different drop paint. Nothing of Klein’s painting would be reproduced in Roberts’ Yellow Monochrome except the concept of a monochrome painting, which can’t be copyrighted and therefore can’t be infringed upon. But I don’t think that was his point. He seemed to be snagged on whether sufficient transformation can be defined by the presence of any “new message” in the new work, which is a side effect of transformation not the transformation itself.

His second conceptual piece is a little better, but also mostly a variation on Thomas’s, since, again, it’s about least amount of transformation possible. Roberts was still more interested in “message” though, a murky idea that avoids the question of degrees.

It would be more useful to ask whether the altered smile alters “the heart” of Goldsmith’s photograph. SCOTUS ruled in 1997 that infringement occurs if the copied portion is “the heart of the work,” and they ruled again last year that: “even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the ‘heart’ of the original work’s creative expression.” (That’s from Breyer’s Google v. Oracle again, same section as his dinosaur short story.)

Sadly, the key question of what constitutes “the heart” of a visual image, particularly an image of a individual such as Prince, somehow never came up during the oral arguments. I’d say Roberts’s Happy Prince raises a good question, albeit one that the Chief Justice wasn’t aware he was raising. Most of the image reproduces the original verbatim–and yet if the altered mouth alters “the heart” of Goldsmith’s photograph, then the transformativeness must be substantive and, if so, it shouldn’t infringe. I would love if the Supreme Court would answer that core question. But at the moment, they don’t seem to know the question exists.

Alito certainly doesn’t.

Maybe Justice Alito was napping during Thomas’s and Roberts’s questions, because his conceptual art is a step backwards into irrelevance. Thomas at least introduced a change of use. Alito is just imagining some second work of fine art with some non-essential element altered. Again, if he had reread infringement cases that focused on the question of what constitutes a work’s “heart,” he would know that his questioning was self-evident: yes, a copy of the Mona Lisa that alters only the color of the dress would infringe on the original.

The Court isn’t supposed to declare their decision until summer, and I really don’t know which side they’ll land on. Sadly, I suspect it won’t matter, because they will do nothing to clarify the central question for anyone other than the plaintiff and defendant in this very particular case. When we read the ruling, the problem will still be there.

Tags: , , , , , ,

According to the most recent polling, trust in the Supreme Court has dropped 22% in the last three years.

For the previous half century, trust varied between 60% and 80%, dipping only once to nearly 50%. Now for the first time, a majority of Americans distrust the Court.

Of course “the Court” refers to the institution, not the changing roster of individuals who embody it.

The members of our current Court were appointed by five different presidents over the last thirty years.

Because appointments are for life, and Justices are free to retire at any time (typically timed so their replacement is appointed by a president of their political preference), there’s no predicting how long any particular Justice will serve. Also, two of the last four vacancies were due to deaths. As a result, it’s impossible to predict how many Justices any given president will replace.

Looking at the last three decades, the average is two per president.

At first glance, the distribution appears roughly even. Sure, Trump has the most, but only by one compared to his three predecessors.

But then consider the number of terms each president served.

Add a couple more decades, and the results are similar.

Yes, Reagan appointed one more Justice than Trump, but he was in office twice as long.

The disproportionate distribution is more obvious when you calculate Justices per presidential term.

Reagan and then Bush appointed two Justices during each of their terms, at least twice as many as their two predecessors, as well as their next three successors.

But that imbalance is minor compared to Trump’s three appointments.

Though appointments are unpredictable and often a result of luck and happenstance, Trump’s weren’t. The intentional disproportion was orchestrated by Mitch McConnell, who refused to allow a vote on Obama’s appointment after Scalia’s death almost nine months before a general election, and then rushed through Trump’s appointment after Ginsberg’s death less than nine weeks before the next general election.

Without McConnell, Obama and Biden would each have one additional appointment.

If McConnell had instead undermined the Court only once under Obama, the distribution would still be fairer.

Instead, the McConnell packing has produced a Court deeply out-of-sync with the American public because three of its members were selected by not simply a one-term president but by the only president in US history to lose the popular vote by 2%.

That president also made his goal explicit. Trump said during a 2016 debate: “If we put another two or perhaps three justices on, [overturning Roe] will happen. And that will happen automatically, in my opinion, because I am putting pro-life justices on the court.”

As a result, 66% of the McConnell-Trump Court voted to overthrow Roe, even though only 35% of the US population agreed. Gallup shows consistent Roe support.

Roe reflected the will of voters as expressed through presidential elections of at least the last three decades.

The randomness of Court openings thwarts that will. It is explicitly anti-democratic. No other government official decides the duration of their own term with no means for voters to replace them.

The shortest serving current Justice is of course the newest:

Looking at all 116 Justices in Court history, the average serves for 16 years.

Two current Justices are just over that average:

Only one current Justice is exceptionally out-of-sync:

Thomas is starting his 32nd year.

Kennedy, who is just below Thomas on the all-time longest-serving list, retired during his 31st year.

Neither should have served that long. The Supreme Court should not be controlled by the whims of its incumbents, some serving twice as long as the average of all its other members.

The solution is remarkably simple.

It’s also already been introduced in Congress.

Note that last clause. It prevents another McConnell fiasco. Obama appointed Merrick Garland (currently Biden’s Attorney General) to replace Scalia in March 2016. McConnell prevented a vote, but under the new bill, Garland would have become a Justice four months later anyway.

The bill also satisfies the constitutional requirement that Justices are permitted to serve for life. The bill removes no Justices; it only determines when they will become Senior Justices.

The Constitution states that Justices “shall hold their Offices during good Behaviour,” meaning they can only be removed by impeachment.

Personally, I think the fact that one of our current Justices is married to a person who publicly denies the legitimately of the 2020 presidential election and, significantly worse, was communicating with the losing president’s chief-of-staff to strategize how to keep the losing president in office, that’s sufficient grounds for impeachment.

That Justice Thomas has also already served twice the average term exacerbates the problem. With 18-year term limits, the last hold-out from the early 1990s would no longer be determining law. Roberts and Alito would soon follow. Then moving forward, every president would appoint two Justices each term. If a president is reelected, they appoint two more–just as Reagan did. The make-up of the Court would then reflect voter will and not the unpredictable whims and political preferences of its individual incumbents.

The bill even has high bipartisan support. According to a June poll, 67% of Americans favor term limits for Supreme Court justices, including 57% of Republicans. The number was 70% in September. That super-majority support has been consistent for years: 77% in 2020 and 2019, and 78% in 2018.

We just need a Congress willing to listen to the overwhelming majority of the American public.

Beginning October 12th, the Supreme Court will hear arguments for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

The case is convoluted but in short: Lynne Goldsmith photographed Prince, and Warhol used her photograph to make his own artwork. (I blogged a lot about this in spring 2021.)

Did Warhol infringe on Goldsmith’s copyright?

When a first court said no, Goldsmith appealed.

When the next court said yes, Warhol appealed.

Now the Supreme Court will give a definitive ruling.

According to SCOTUSblog.com, the issue is:

“Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).”

More generally, SCOTUS will clarify the parameters of fair use in art.

Or at least that’s the hope. Agreeing with the historically low opinion the U.S. population has of the McConnell-packed Supreme Court’s recent behavior, my hopes are low. (The Court’s majority somehow did not notice that the Constitution does not acknowledge let alone confer rights to so-called unborn people [the 14th Amendment applies to “persons born”], and yet it ruled that such constitutionally non-existent people’s rights trump the rights of actual people who are pregnant.)

The above issue summary implies that if the Court decides that transformative meaning can’t be considered for recognizably derivative images, Goldsmith wins; and conversely, if the Court decides that transformative meaning can (and presumably therefore must) be considered, Warhol wins.

That, unfortunately, ignores a third possibility: transformative meaning must be considered, and Goldsmith wins because Warhol’s work fails the transformative test.

It ignores (or at least obscures) a forth possibility too: Warhol wins by passing the transformative test.

It’s the test that’s desperately needed. Without it, the parameters for copyright infringement will remain ambiguous, and threats of lawsuits will continue to control artistic behavior. In short, artists need to know what is and what is not adequately transformative when developing artwork from a source image.

The history of similar legal cases (and non-cases) adds to the confusion.

Warhol’s Warhol-defining Marilyn artworks are recognizably derived from a photograph taken by Eugene Korman to publicize the 1953 film Niagara. Korman was employed by 20th Century Fox, but neither ever sued Warhol for copyright infringement, suggesting that Warhol’s art was meaningfully transformative.

Similarly, in the 2014 KIENITZ V. SCONNIE NATION AND UNDERGROUND PRINTING, circuit judges ruled that a recognizably derivative image fell under fair use because:

“Defendants removed so much of the original that … only the smile remains. Defendants started with a low resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

That argument strikes me as unfortunate nonsense, since I suspect most viewers would categorize the second image as recognizably derived from the first, and its consists of more than just an outline of a head and a hint of a mouth. It captures the subject’s likeness. SCOTUS ruled in 1997 that infringement occurs if the copied portion is “the heart of the work,” and they ruled again last year that: “even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the ‘heart’ of the original work’s creative expression.” Since the face in the poster is recognizably derived from the face in the photograph, does that mean the poster copied the “heart” of the original? I suspect yes. And yet I would also think the poster fell under fair use (though mainly for other aspects of the 4-part doctrine, since the poster was used to parody a government official).

The degree of transformation is the unaddressed problem.

For his Obama political poster HOPE, Shepard Fairey used a photograph taken by Mannie Garcia while covering a press conference for the Associated Press. The Associated Press sued, and Fairey eventually settled out court, agreeing to pay the AP $1.6 million.

Fairey’s image retains more detail from its source than does the non-infringing Kientz example, but not much more. Where is the line for infringement? Not knowing means copyright-holders can easily intimidate artists with just the threat of lawsuits.

For the tribute album Kind of Bloop, Andy Baio used a pixilated version of the photograph of Miles Davis taken by Jay Maisel that appeared on the cover of the 1959 Miles Davis album Kind of Blue.

Baio thought he was safe because the pixilated version reproduced the source image “at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements.” That seems to align with the Kientz ruling. But litigation is expensive even when a defendant wins, and the risks of losing can be financially catastrophic. So Baio settled out of court.

I’m not aware of similar court cases involving comic books, and yet the history of “swipes” runs from the medium’s beginning:

And continues into its present:

Which only intensifies the need for SCOTUS to create a test for legally minimal transformativeness.

The image on the right is derived from the Picasso painting on the left. Because it is not “recognizably” so, I assume I have not infringed on any copyright:

But in the second pair, the image on the right is an early stage in my transformation process.

Does it infringe? I have no idea. But if SCOTUS does its job right, I will after their Warhol v. Goldsmith ruling.

My Picasso example is moot, but others aren’t.

In 2014, the Associated Press threatened to sue George Zimmerman over a painting recognizably derived from a photograph of prosecutor Angela Corey taken by Rick Wilson:

To be clear, this is the same George Zimmerman who (in my opinion) got away with (third-degree) murder when he was acquitted after fatally shooting Trayvon Martin in 2013. I don’t really care if AP sues him or not. But I do care about the broader legal implications.

“If you put George Zimmerman’s picture inside Rick Wilson’s, there’s no question it’s the exact same photo,” the AP attorney claimed. “It’s just that he’s put some red screen on it, and you can’t do that. The U.S. Supreme Court has come and said that you can’t do it, and he’s going to have a hard time fighting it.”

Although it seems true that “Zimmerman clearly directly copied an AP photo to create his painting,” as the AP alleges, he did not just “put some red screen on” the photo, and it is not “the exact same photo” because it is not a photo at all.

Also, no, the U.S. Supreme Court has not come and said that you can’t do it — or that you can either.

That’s what we’re waiting for.

My best guess: SCOTUS sides with Warhol, but fails to explain in a manner that will clarify infringement for potential future cases. Alternatively, the Court sides with Goldsmith and still fails to explain in a manner that will clarify infringement for potential future cases. Either way, I predict they dodge the needed work of determining a standard for meaningful transformation.

But on a more hopeful note, at least Justice Jackson will be part of the process.

[And if you’re curious how that process went during the oral arguments, continue here.]

I’m a comics scholar, not a graphic designer, but I’m not the first to notice the overlap. Canadian cartoonist Seth made it explicit: “comics = poetry + graphic design.”

The following info meme is definitely not poetry. It’s also not a work in the comics medium. But it does reveal a lot about visual design and how comics analysis and composition might be useful tools.

So first consider in what order you view the following words and images. Notice how your eyes move around the surface as you glean the information.

If you’re like me, you wandered a bit. I’m not sure what a graphic designer would call that, but in The Comics Form, I term that a variable viewing path. I use Thierry Smolderen’s analysis of a William Hogarth engraving as a primary example: it invites “the reader to a ‘winding walk’ from one detail, one clue, to another,” creating “a slow read, one that invites the eye to lose itself in the details and to return to them.”

The early vote meme is not in the comics medium, but it is in the comics form (because it includes more than one image, including a mailbox, a voter depositing a ballot, pages from a calendar, and a card ID). For works in the comics form or the comics medium, a viewing path is either variable, allowing a range of “winding walks,” or directed, prescribing a single path. Whether called a comic or not, the meme is presenting content that a viewer has to absorb in some order. Scott McCloud calls that “flow,” how “the arrangement of panels on a page or screen, and the arrangement of elements within a panel” guide “readers between and within panels” by “directing the eye through reader expectations and content.”

I think the voter guide has a flow problem.

According to McCloud, such navigating should be “a simple, intuitive process,” one that will “be transparent to the reader” so that “the reading flow can continue uninterrupted.” He therefore warns prospective artists to avoid “inherently confusing arrangements,” because they produce “just enough split-second confusion to yank readers out of the world of the story.” Joseph Witek expresses the same aesthetic preference, because “readers who are trying to figure out the proper way to read the page are readers who are not immersed in the story.”

As far as a general aesthetic principles, I disagree with McCloud’s and Witek’s assumption. I think sometimes an artist has good reason not to privilege effortless flow. But in this case, “the story” is voter information, and the artist (presumably someone working for Virginia’s Democratic Party) distracted me with a variable viewing path that served no purpose.

Tools of comics analysis can help with that, first by mapping the meme’s layout, and then by suggesting a less interruptive arrangement.

If you’re like me, you first tried to find a directed path, and so started in the top left corner where paths typically begin. My eyes started wandering only after the visual structure didn’t move them in any clear direction. Those top left words (“There are two ways to vote early in Virginia”) are clear enough, but the words underneath them (“by mail or in person”) and the image to the right are oddly distant (even though their meanings overlap). Whichever you view first requires an unintuitive leap to view the second.

So for starters, I would move the image to the left:

That image-and-text proximity is better, but it doesn’t get at the overall flow challenges. So consider the units of information in the entire meme. I count seven:

I’m not sure about that second row (is “Same day registration begins Oct. 1” part of the “Important Dates” list?), and though the six questions/answers could be subdivided, together they are the “FAQ” content. Many comics pages have seven or more units too, but in this case my eye is unsure how to move through them:

When you look at the top right image, its proximity to the next cluster of words (“Same day registration begins Oct. 1”) could lead your eye downward. Or you may attempt to maintain a Z-path (left-to-right, top-to-bottom) and move instead to “Important Dates.” Continuing on that path leads you to the registration information — though why is that date not rendered in the image of a calendar like the first four? And since the image conveys the idea of dates visually, why include the redundant subtitle at all?

Moving to what might seem like the next row is more confusing, since the arrow-like tails of the two speech bubbles that contain “FAQ” point downward to the ID image, implying a column path, and yet the actual FAQs are clustered to the right. One references IDs and so its content would send you back to the left, and another references registration and so conceptually would link you back up to the important date a row higher.

Analyzing the meme as a comics page may help. Except for the bottom banner, there are no drawn frames, but the others are implied:

That cluster of six mini-panels could be drawn as a regular grid, but I think the lack of frames creates a less rigid effect. More “split-second confusion” occurs in at least two places: moving from panel 4 to two possible panels 5, and then once in the cluster of six smaller panels, moving from panel 5 to two possible panels 6:

If I ever teach a class on visual design (which I strongly suspect I never will), I might assign students to redesign the voter guide to flow as a “simple, intuitive process.”

Feel free to grade my own attempt:

It contains all of the same information (minus the superfluous “Important Dates” and “FAQ” image) in roughly the same space (though my version turned out a little more square than rectangular). Since the original top words aren’t the title, which instead appears at the very bottom (“2022 Early Vote Guide”), I moved that too.

Here’s how I think the flow works:

Instead of a Z-path, it begins as an N-path, but then after the first column on the left, the second column merges Z- and N- viewing — though hopefully the back-and-forth produces no split-second confusions but an intuitive sense of intended variability.

Or at least that’s what my comics-immersed brain perceives. If I ever get tired of writing comics theory, maybe I can volunteer to design voter memes for the VaDems.

Meanwhile, have you voted yet?

Early voting started in Virginia last Friday, but neither of our Senators, Warner or Kaine, are facing the end of a term.

Of the 100 seats in the Senate, 35 of them are up for election this cycle.

Of those 35, 21 are currently held by Republicans and 14 by Democrats.

Despite that seemingly Democratic advantage, Republicans and Democrats have about the same number of competitive seats. According to the latest Cook Political Report ratings, Republicans are defending three seats in the “lean R” category, one in the “toss-ups,” and one in the “lean D”, while Democrats are defending three “lean D” and two “toss-ups.”

So if you look only at toss-ups, Republicans would seem to have a two-to-one advantage. But since Democrats have to win only one of those three, the advantage is reversed (because Vice-President Harris is the tie-breaker if the Senate splits equally, as it is right now).

The three toss-ups are: Nevada, Georgia, and Wisconsin. Until last week, Cook considered Arizona one too, but they changed its status to “Lean D” last week. According to 270toWin, there’s also a fifth: Pennsylvania.

And some consider Ohio, North Carolina, and New Hampshire to be in play too. (Occasionally, even Florida and Colorado are mentioned, but that seems a bit far-fetched to me.)

Of those 8 races, to win control of the Senate, Republicans need to win 5.

To keep control of the Senate, Democrats need to win 4.

Looking at the polls, odds look good for Democrats. According to the conglomerate averages at FiveThirtyEight on September 21:

  • in Pennsylvania, Fetterman is up by 9.5 points.
  • in Arizona, Kelly is up by 8.7 points.
  • in New Hampshire, Hassan is up by 6.6 points.
  • in Nevada, Cortez Masto is up by 2.9 points.
  • in Georgia, Warnock is up 2.1 points.
  • in Wisconsin, Barnes is even.
  • in Ohio, Ryan is down by .2 points.
  • in North Carolina, Beasley is down by .3 points.

Using to the Cook spreadsheet, the polls predict these winners:

So if the election had been held on September 21, the Senate would have gone either 51/49 or 52/48, with Democrats gaining one or two seats (definitely Pennsylvania and possibly Wisconsin). Though given the closeness of North Carolina and Ohio (both are essentially even with differences of only .2 and .3), either of those could have tipped Democratic too, for as much as an unlikely but possible 54/46 majority:

But are the polls right?

I keep reading anxiety-driven articles (“Are the Polls Wrong Again?” “Will the Polls Overestimate Democrats Again?” “Pollsters fear they’re blowing it again in 2022“) insisting that there is no Democratic polling bias—just the relentless fear of one.

Is there a way to counter that fear?

According to Politico’s Stephen Clermont: “When voters dislike both parties, they will vote Republican unless Democrats compel them otherwise.” So he recommends looking not at the polling difference between candidates, but at just the Democrat. Based on the 18 Senate and presidential races from 2014-2020, if the Democrat polled:

  • 49% or higher, the Democrat won.
  • 48%, the Democrat won almost two out of three (63%).
  • 45-47%, the Democrat won about one out of five (19%).
  • 44% or lower, the Democrat never won.

I see at least two problems with this approach. First, merging three percentages (45, 46, 47) allows for a lot of wiggle room for one of the most critical questions (when are the odds 50/50?), and, second, are 18 races really enough of a data set to draw meaningful conclusions? Also, I’m not sure Clermont’s claim (“When voters dislike both parties, they will vote Republican unless Democrats compel them otherwise”) is true generally, and “dislike” may not capture attitudes toward some of this year’s MAGA extremists. As McConnell said, the GOP is suffering from “candidate quality.”

Still, this seems like a useful exercise. According to the conglomerate polling averages at FiveThirtyEight on September 21:

  • in Pennsylvania, Fetterman: 50.9%
  • in New Hampshire, Hassan: 49%
  • in Arizona, Kelly: 48.8%
  • in Georgia, Warnock: 47.9%
  • in Wisconsin, Barnes 47.6%
  • in North Carolina, Beasley: 45%
  • in Ohio, Ryan: 44.5%
  • in Nevada, Cortez Masto: 44.2%

The top two are clear Democratic winners, and since 48.8% is pretty close to 49%, I’d call that three. Democrats need just one more. Since both 47.9% and 47.6% round up to 48%, both should have close to two-to-one odds, with either one likely to produce the Democrats’ necessary fourth win. If they do win both, that tilts the Senate 51/49, with the remaining three seats likely going Republican.

Back on the Cook spreadsheet:

And that’s the most pessimistic prediction. Even though Cortez Masto’s 44.2% is at the bottom of the list, she’s leading in polls by about 3 points, and FiveThirtyEight gives her 54% odds of winning, the same as Warnock who, according to Clermont, should win.

According to FiveThirtyEight predictions, Democrats should gain one seat for a 51/49 majority:

Though 54% odds on either of the two tightest races are only slightly better than a coin toss, for Republicans to take control of the Senate, they need to with BOTH coin tosses. That’s possible, but not likely.

And, again, that’s not according to the polls. If you look at just those numbers (now updated as of Sunday September 25th), the Democrats would win four additional seats for a 54/46 majority:

That’s the kind of too-good-to-be-true prediction that has Democrats so paradoxically terrified that all positive predictions must be false. Since two of those predictions are close to even odds (51 and 53), and two are only slightly better (55 and 56), I wouldn’t assume anything about those outcomes. But even if Democrats lost all four, they would still keep control of the evenly divided Senate (because of Warnock, who is predicted to win with two-to-one odds).

Last January, I wrote this blog entry: “Which Party Will Win the Senate in November 2022?

Because Arizona, Nevada, and Georgia all lean Republican, the key question then was:

“Can Democratic Senators Kelly, Warnock, and Cortez Mastro hold their seats in unfavorable territory? If any two lose, the Republicans control the Senate. If only one of those Democratic senators loses, control of the senate then hinges on Pennsylvania. Because Pennsylvania’s Republican senator is retiring, the seat is wide open, with over a dozen candidates competing in both party primaries. Personally, I’m betting the current lieutenant governor, John Fetterman, wins both the Democratic primary and the general election.”

Nine months later, Kelly and Fetterman both look like safe bets. And while Warnock and Cortez Mastro remain unknowns, they are joined by Wisconsin’s Republican incumbent Johnson.

Republicans have to win all three tossups, plus two additional battleground states, Ohio and North Carolina, in order to win the Senate.

Democrats have to win only one of those five.

As I said last January: “The answer is of course unknowable. It will probably remain unknowable right up to the election. All we can know right now are the factors that will shape the outcome.”

While that remains true, the factors look very good for Democrats.

%d bloggers like this: