Happy Thanksgiving everyone! Enjoy the holiday but stay safe.

Biden Hits 80 Million Votes

As the election results keep trickling in, Joe Biden has now passed the 80-million vote mark. He currently stands at 80,070,466 votes. This is the largest number of votes any presidential candidate has ever received in American history. It is also 51% of the total votes cast this year for president.

The second largest vote total ever is for...Donald Trump in 2020. He has 73,890,413 votes, for 47.1%. In third place is Barack Obama in 2008, with 69,498,516. Obama is also fourth, with 65,915,795 in 2012. Rounding out the top five is Hillary Clinton with 65,853,514 in 2016.

The best showing ever for a third party is George Wallace's 1968 total of 9,901,118 on the American Independent ticket. Wallace also won five states and 46 electoral votes. Second best for a minor party is Ross Perot's 8,085,294 vote total in 1996 as the Reform party candidate. The best EV showing for a third party is the 88 that Bull Moose Theodore Roosevelt collected in 1912, which he did on the strength of 4,122,721 votes. The highest total for the Libertarian Party is Gary Johnson's 4,489,235-vote haul in 2016. The best showing ever for the Green Party was Ralph Nader's 2,882,995-vote total in 2000. The best the Whig Party ever did was 1,386,942 in 1852. It wasn't good enough, though. Winfield Scott lost. However, 4 years earlier, Zachary Taylor won on the Whig ticket with slightly fewer votes: 1,360,235.

For the Republicans, the great bugaboo and rallying cry is "Socialist!!!" Gotcha! Americans would never vote for a socialist, would they? Actually, in 1920, Eugene Debs got 913,693 votes as the Socialist Party Candidate (compared to 16,144,093 for Republican Warren Harding and 9,139,661 for Democrat James Cox). Even an openly Communist party, namely Communist Party USA, got some votes: William Foster got 103,307 in 1932. If you want to see how the Free Soil, Greenback, Prohibition, Citizens, Constitution, Anti-Monopoly, Populist, Natural Law and Anti-Masonic parties have done, check out this list. (V)

Biden Rules Out Having Sanders and Warren in the Cabinet

In an interview on NBC, Joe Biden appeared to rule out nominating Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) for cabinet positions. He said he would like to keep them in the Senate to help him carry out a progressive agenda (English translation: "I don't want them causing trouble in the Cabinet and besides the Senate would never confirm them.")

An additional problem is that both senators come from states with Republican governors, and Biden can ill afford to lose even a single Democrat in the Senate. Warren is less of a problem in that respect because Democrats in the Massachusetts state legislature could change the law governing Senate vacancies to state that when a vacancy occurs, the former senator's party gives the governor a list of three candidates and he must choose one of them. Gov. Charlie Baker (R-MA) would veto that, but the Democrats could override his veto. Several states, such as North Carolina, have such a law. Vermont is a bigger problem. Gov. Phil Scott (R-VT) says he would appoint an independent who would caucus with the Democrats and would not stand for reelection, but finding such a person may not be easy. And if Scott were to choose poorly, or to change his mind, the Democrats could end up down a seat for up to six months. This effectively eliminates Sanders from contention.

In a way, the problems with the replacement senators is a godsend for Biden. He is going to have enough problems with the Senate (unless the Democrats win both Georgia runoffs), so nominating anyone the Republicans can't stand is just looking for trouble. Having a good reason to not pick progressives he doesn't really want gives him a cover story (especially for not picking Sanders). (V)

Jaime Harrison Is the Frontrunner for DNC Chairman

Jaime Harrison demonstrated one thing during his run for the Senate: He is very good at raising money from Democrats. Now he needs a job. Are there any jobs where the primary task is raising money from Democrats? Yes! Chairman of the Democratic National Committee. He now appears to be the frontrunner to succeed Tom Perez. In theory, the members of the DNC elect the chair, but in practice, the president gets to make the call for his party. If Joe Biden were to pick Harrison, there wouldn't be any pushback and he would get some brownie points with Black voters for putting a Black man in such an important and visible position. He wouldn't be the first Black person to run the DNC, though. Donna Brazile served as acting chair twice, and Ron Brown served as chair during the Clinton years.

Besides raising over $100 million for his Senate run, Harrison has some other qualifications for the job. He ran the South Carolina Democratic party for a while, so he understands what running a party committee is all about. In fact, he ran for DNC chair in 2017 and didn't get it, but if Biden backs him, he will this time. It is also suspected that another South Carolina Democrat, Rep. Jim Clyburn, would very much like to see Harrison take over the reins at the DNC, and Clyburn has a lot of credibility with Biden.

The fact that Harrison is from a red state resonates with the DNC members from red states, who often feel they are ignored. The number of DNC members from each state depends somewhat on the state's population and other factors, but it is far from linear. For example, California has 22 members but Arkansas, Guam, Idaho, Maine, West Virginia, Wyoming, and some others have only four, the minimum for a state or territory.

One of the things the DNC will have to deal with fairly soon will be how to organize the 2024 primaries and caucuses (if any). If Joe Biden runs for a second term, the issue is moot, but most people expect him to step down, leading to a wild and woolly primary season again, just as in 2020. One key issue is whether two nearly-all-white states, Iowa and New Hampshire, should go first and thus have a disproportionate influence on choosing the nominee. The fact that Iowa completely botched it this year is a strong argument for telling Iowa to please go to the back of the line next time. If Harrison wants another Midwestern state to be early in the list, Michigan is a much more diverse state than Iowa and is far more important to the Democrats than Iowa. If Harrison becomes the DNC chair, he will have this matter on his plate fairly quickly. (V)

Trump Pardons Michael Flynn

On Wednesday, after roughly 24 hours of rumors that he was going to do it, Donald Trump went ahead and did it, and pardoned former NSA Michael Flynn. How did the President break the news? You get three guesses and the first two don't count:

It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon. Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving!

— Donald J. Trump (@realDonaldTrump) November 25, 2020

Flynn's legal troubles began during the transition in Dec. 2016. Then-president Barack Obama had imposed sanctions on Russia for interfering in the election to help Trump. Flynn then called the Russian ambassador and asked him to tell Vladimir Putin not to react to the sanctions, with the implication that Trump would soon make them go away. Flynn then lied to Mike Pence and later to the FBI, denying that he had made any such call. When Robert Mueller began investigating the Russian interference, Flynn admitted his guilt in a plea deal. Later, Flynn tried to withdraw his guilty plea.

The pardon gets Flynn out of hot water, but it creates a new problem for him. He's now lost his Fifth Amendment right to not answer questions in Justice Dept. investigations of other people. He would either have to tell the truth, possibly incriminating other administration officials, or else commit perjury, for which he could be prosecuted because pardons cover only past crimes, not crimes committed after the pardon. Given that the White House spent more than a day "discussing" the pardon, it somewhat suggests that an understanding has been reached that, in exchange for his pardon, Flynn won't throw Trump or anyone else under the bus, even if it means lying under oath. What other reason for a delay, if not to get everyone on the same page on that point?

Many people are expecting Trump to issue a flurry of pardons in January, covering his friends, associates, family, and everyone else who has committed crimes on his behalf. The President may also try to include himself on that list (more below). If ever there were a time in which the president's unlimited power to issue pardons could be reined in, it is starting on Jan. 20. A constitutional amendment requiring pardons to be approved by the Senate might just get Republican votes in Congress and be approved by Republican-controlled state legislatures since Joe Biden would be the first president to be constrained. (V & Z)

Should Trump Be Prosecuted?

Andrew Weissman, one of the senior prosecutors on Robert Mueller's team, has written an op-ed for The New York Times on the delicate subject of whether Joe Biden's AG should prosecute Donald Trump. On the one hand, it would not be good for democracy for each incoming president to prosecute the outgoing one. It could easily get to be a habit, with the supporters of the new president demanding revenge for all the "crimes" the previous one committed.

That notwithstanding, Weissmann says that if a president can break the law and Congress won't remove him, that isn't good for democracy either. Having seen all the evidence, Weissmann says there is enough to charge Trump with obstruction of justice. Not only did Trump fire then-FBI Director James Comey to prevent him from investigating Russiagate, but Trump also beseeched White House Counsel Don McGahn to lie and do it in writing (which McGahn, to his credit, refused to do). Trump also tried to influence the jury when his former campaign manager, Paul Manafort, was on trial. He has also dangled pardons to witnesses in various cases. Paying hush money to Stormy Daniels and Karen McDougal and not reporting it as a campaign expense was a violation of election law. In short, there is plenty to go after.

Separate from these issues are the state cases. The idea that someone who has committed state crimes (e.g., bank fraud or insurance fraud) can have them nullified by being elected president is patently absurd. Both Manhattan D.A. Cyrus Vance and NY AG Letitia James are looking into crimes Trump committed in New York State before becoming president. Vance is still waiting for Trump's tax returns, but as soon as Janet Yellen is confirmed as Secretary of the Treasury, he should be able to get them quite easily. And no, moving to Florida does not mean Trump is suddenly protected from being prosecuted in New York.

One known unknown is what happens when and if Trump pardons himself. It is very likely he will do it, since there is enormous upside and limited downside. But, of course, "limited downside" is not "zero downside." The potential issue Trump could run into is that if he accepts a pardon (from himself, or from Mike Pence), that is legally regarded as an admission of guilt. If the pardon is found to be legally invalid (much more likely if it's a self-pardon), then the President could be dealing himself the double whammy of not actually pardoning himself, and at the same time having admitted guilt. Further, even if the federal pardon stands, it could weaken his position in the state-level cases, depending on what he's charged with.

If Trump does try to self-pardon, then the new AG could well charge him with one or more crimes and tell Trump that if he is convicted, he can appeal to the Supreme Court and ask them to decide on the validity of self-pardons. As University of Missouri Professor of Law Frank O. Bowman III writes in an op-ed for Just Security, Trump would be in a very tenuous legal position. To start, it is a well-established principle of English common law, on which American legal theory is based, that no man be his own judge. Further, the plain text of the Constitution makes pretty clear that self-pardons are verboten. Bowman's piece raises a number of arguments in support of this point, so you should consider reading it in its entirety, but two points stand out as particularly compelling. First, the president is afforded the "power to grant reprieves and pardons." "Grant" means "give" or "gift" or "bestow," and you can't bestow things upon yourself. Second, the Constitution says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

This clearly indicates that a president can be impeached, or criminally charged, or both, for acts of malfeasance. The second possibility (the criminal charges) wouldn't exist if a president can self-pardon (unless he was really stupid). Clearly, then, the authors of the document did not intend to grant the president the right to pardon himself.

When arguing this potential case, the solicitor general could easily give some practical examples, like: "If self-pardons are valid, the president could come barging in here with a machine gun and mow down all nine justices followed by a self-pardon. If his party controlled at least one chamber of Congress, he could not only escape impeachment and conviction, but also nominate nine new justices and possibly get them confirmed. You folks OK with that?"

Yesterday, USA Today ran a story with the headline: "Biden says he won't order an investigation of Trump, president's legal troubles remain." What Biden actually said was: "I will not do what this president does and use the Justice Department as my vehicle to insist that something happened." What Biden meant was that he would not personally give an order to his AG to investigate Trump. Handling Trump would be the AG's call. That sounds plausible, given Biden's commitment to not politicize the Dept. of Justice. The other side of the coin is that if the AG decided to prosecute Trump, Biden wouldn't stop him. In short, Biden didn't actually say anything we didn't already know. In fact, you could argue that he really didn't say anything at all. (V & Z)

Another Theory about Why the Polls Were Wrong

We have looked at why the polls were off a few times and will no doubt continue to look until it becomes clearer (if it ever does). Here is today's installment. FiveThirtyEight is offering the idea, backed by data, that Donald Trump was very popular among white people who are socially isolated and have low levels of social trust. In a survey, 17% of the population reports having no one they are close to. These people are also much less likely to take part in a telephone survey. These could be the hidden Trump voters who weren't pollable and suddenly emerged on Election Day.

Social isolation has long been thought to reduce willingness to participate in a poll administered on the phone by a total stranger you don't trust. Some published papers by sociologists support this hypothesis. Note that this is different from the "shy Trump voter" hypothesis, where the Trump voter takes the poll but lies to the pollster stating that he is undecided or supports Biden. In general, people who are socially alienated are not politically engaged. One study shows that people with at least four social ties are three times more likely to have contacted an elected official in the past year than those with no social ties.

Being socially alienated has other consequences besides not taking polls. For example, such people are often untethered from national and local institutions and are more willing to destroy them. It's not hard to see how they might be attracted to Trump and also not be willing to be polled. If you don't see the political process as legitimate at all, you are clearly primed for someone like Trump who says that out loud. The idea that a substantial number of hidden socially alienated people refused to be polled and voted for Trump sounds plausible, but proving that this was the key cause of the polling failure is hard to nail down. (V)

Money Can Buy Ads, but Not Love

It was an ugly campaign. How about looking at the bright side: The election was not for sale. The expectation is that the elections will cost $14 billion in all, and it won't even be over until Jan. 5. If money could buy public office, Amy McGrath, Jaime Harrison, Cal Cunningham, Steve Bullock, Sara Gideon, and Doug Jones would all be sworn in on Jan. 3, since the $600 million they spent dwarfed what their Republican opponents spent. All of them lost.

Michael Bloomberg spent $1 billion on his own race and another $100 million to help Joe Biden in Florida. What did it buy him? Only a dent in his legacy. In the primaries, Bernie Sanders raised and spent $163 million through February, not that it did him any good. Democrats spent tens of millions of dollars on state legislative races and failed to flip a single chamber. ActBlue raised $1.5 billion in Q3 alone and it got almost nothing.

How can this be? Isn't money the mother's milk of politics? Yes, but there are limits. Colby College Prof. Dan Shea said of Sara Gideon's campaign in Maine: "It was like being a local in Woodstock in 1969. When it first started, it was exciting and fun, but by the end, it was muddy and dirty." In the Maine race in particular, it is likely that Mainers resented all the outsiders mucking around in their race. It was their choice to make, no matter how much money Californians showered on Gideon.

A large part of the problem generally is that the country is so polarized that negative television ads have lost their punch. Setting up a ground operation to locate and register voters is probably more effective, as Stacey Abrams demonstrated in Georgia, but COVID-19 made that much more difficult. The conclusion has to be that money is useful up to a point, but beyond that, just buying more ads is like throwing $100 bills into the paper shredder, or lending money to Donald Trump. Maybe this is a good thing, though. (V)

How to Run a Proper Election

Elections in the U.S. have become like elections in Russia: A huge number of people believe they are illegitimate. In 2016, only 43% of Democrats believed the election was free and fair. This year, fewer than 30% of Republicans believe the election was fair. In part, this is due to the president braying that it was rigged, but the whole system has deep structural flaws that have nothing to do with the candidates. A piece by University of North Carolina professor Zeynep Tufekci has suggestions for fundamental reform that might give elections more credibility, as follows.

• Easier Registration: Eligible voters should be registered automatically if they are not already registered, every time they interact with a state government agency, such as the DMV. States should standardize their voter-registration databases so they can be easily updated when voters move or die. If everyone believed that the voter-registration databases were correct, that would greatly increase the credibility of elections.
  
  
• Correct Poll Books: Given a correct voter database, there should be electronic poll books (with paper backups) at polling places to make sure all eligible voters can vote but no ineligible voters can vote. If this were in place, claims of millions of ineligible voters casting polls wouldn't be taken seriously. This would also speed up voting by eliminating the need for provisional ballots. It would also allow voters to vote in any precinct in their county. There needs to be a national standard for their certification and security, along with federal funding.
  
  
• Auditability: The Georgia presidential election is going to be counted three times. Good for Georgia. Every state should adopt paper ballots and optical scanners for all elections to make the result auditable. Electronic touchscreen computers are all right as long as they print out a paper ballot that the voter can verify and which can be scanned and recounted by hand if need be. It is essential that the ballot does not contain a bar code with the voter's choices since there is no way for the voter to verify the bar code.
  
  
• Absentee Ballots: Over 100 million people voted absentee this time. That is not going away. There need to be nationally standardized secure procedures for voting by mail that everyone understands. Standardized ballots would also help so that voters who move from one state to another won't suddenly be confronted with an unfamiliar ballot. States should all adopt laws allowing absentee ballots to be verified and counted as soon as they arrive. This step alone would eliminate a lot of suspicion caused by the "red mirage" and subsequent "blue shift" caused by in-person ballots being reported before absentee ballots. If all mail-in ballots were counted before Election Day, the final results would be available in most cases on Election Night, which would greatly improve credibility.
  

One thing not on Tufekci's list, which is also extremely important, is to remove vote counting from the realm of partisan politics. The entire election management in each state should be organized by a permanent nonpartisan board, not by partisan elected secretaries of state. Virtually every other democracy has a nonpartisan board of civil servants run elections, not people who have a very strong preference for one side. Everything they do should be transparent and public so anyone can verify that they are not putting their thumbs on the scale. This year, Georgia's secretary of state, Brad Raffensperger (R), is to be commended for running an honest election, even though his horse in the race lost. This is in contrast to the disgraceful 2018 Georgia gubernatorial election in which then-secretary of state Brian Kemp (R) was the judge of his own race. (V)

All Hail to the Gerrymander

Most vice presidents are long forgotten unless they later went on to become president. There are a few exceptions, though one of them sort of doesn't count. One is Aaron Burr, who achieved eternal infamy the moment he shot and killed Alexander Hamilton. The second is John Nance "Cactus Jack" Garner, who famously compared the office he held to a bucket of liquid. The third was the fifth vice president, Elbridge Gerry, whose claim to everlasting fame rests on what he did as governor of Massachusetts, rather than anything he did during James Madison's administration. He signed a redistricting bill that created a district Boston Gazette compared to a mythical salamander. The state Senate district in Essex County looked like this:

Other than that, Gerry was a pretty good guy. He signed the Declaration of Independence, refused to sign the Constitution because it didn't contain the Bill of Rights, and opposed political parties. He's going to be back in the news big time next year when the census is complete. That's when the gerrymandering will start in earnest.

Let's start with reapportionment. While the census is not final yet, here is a map showing the likely winners and losers. The numbers show how many House seats each state is likely to get in 2022. The number of electoral votes in 2024 is that number plus two, of course.

Seven of the nine states that will lose a representative are blue states. Ohio and West Virginia are the only red states that will lose a seat. So the net loss for the Democrats here is five seats.

The nine new seats go to four states that Donald Trump won and three that Joe Biden won. But there's a kicker: Texas will get three new representatives; the other six states winning the reapportionment lottery get one each. Only two of the winners are solidly blue states (Oregon and Colorado), but three are swing states (Arizona, North Carolina, and Florida). If we go by the presidential election results, Biden states will gain three seats and Trump states will gain six seats, for a net gain of three seats for the Republicans (and maybe four because Arizona isn't a blue state, yet).

Now comes the rest of the bad news for the Democrats: the gerrymandering. Although the Democrats tried hard to get new trifectas and break Republican trifectas, they failed completely. The Republicans picked up a trifecta in New Hampshire, but other than that, nothing changed. Here is a map showing the trifectas, the divided states, and the states where an independent commission draws the maps:

As you can see, Republicans get to draw the maps in Texas and Florida. In North Carolina, the Republican-controlled state legislature can draw the map as it wishes because the governor does not have a veto over it. The good news for the Democrats is the new maps won't be any worse than the old maps in Florida and Texas because the Republicans drew them in 2010. North Carolina is a special case because it was so badly gerrymandered that a court stepped in and drew the map. The conclusion is that the Republicans are going to pick up 4 or 5 seats, depending on what happens in Arizona (where an independent commission draws the maps). That alone could be enough to flip the House and give the gavel to a Republican speaker, very possibly Rep. Liz Cheney (R-WY).

But of course, there will be a midterm election in 2022, which will have an even bigger effect than the map changes. Historically, the president's party loses an average of 26 seats in midterm elections. If that happens, combined with the map changes, the Republicans will have a solid majority in the House come Jan. 3, 2023. However, there is some good news for the Democrats. The 2022 Senate map is not friendly to the Republicans, as we have discussed before. It is at least conceivable that both chambers could flip in 2022. (V)

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