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Some Thoughts on the Supreme Court Vacancy

James Hohmann, a national political correspondent for the Washington Post, is pretty well plugged into politics. Here are his views of what might happen next in the fight over Ruth Ginsburg's successor.

  • Trump will nominate a woman this week: Given the mood of the country, Trump will not dare to nominate a man to replace Ginsburg, especially not since his most recent nominee, Brett Kavanaugh, was credibly accused of sexual assault. Hohmann expects the nominee to be Amy Coney Barrett (48), a conservative Catholic appeals court judge who is also the mother of seven children. She once spoke to the graduating class at Notre Dame, where she got her law degree, and said: "Your legal career is but a means to an end, and ... that end is building the kingdom of God." Barrett would go over very well with Trump's base, especially religious voters. Another possibility is Barbara Lagoa (52), the first Cuban-American woman to serve on the Florida Supreme Court. Or maybe Britt Grant (42), Joan Larsen (51), or Allison Eid (55), all federal appeals court judges. Grant is the youngest woman on the list, and Lagoa is a Latina and from Florida, which is in her favor, while the others are probably too old. In any case, most observers expect it to be Barrett. Part of the reason is that while she has been an appeals judge only 2 years, her record as a judge and her academic writings make it crystal clear that she is not only against abortion, but she can't wait to overturn Roe v. Wade. It is very unlikely that Barrett would turn out to be another David Souter, a George H.W. Bush appointee to the Supreme Court who became fairly liberal once on the Court. Barrett has been very carefully groomed to be on the Supreme Court since she was a first-year law student at Notre Dame. But sometimes people can be surprising. Suppose she is 100% on board with the Catholic Church's teachings on abortion, but also on the Church's teachings relating to the poor.

  • The vote will be after the election: Here Hohmann is going out on a limb. There are advantages and disadvantages to holding the vote before or after the election. If it is before the election and the nominee is confirmed, conservatives who dislike Trump's style can still tell themselves: "Look, I hate his antics but he delivered three conservative justices and soon abortion will be banned." And if they don't tell themselves that, Trump will. Of course, repealing Roe v. Wade won't ban abortion, it will just leave it up to the states. Blue states will make it legal and easy. Red states will limit or forbid it altogether. But telling the base that it will be banned is good enough. They won't know the difference. Holding the Senate vote before the election will give Trump an actual "achievement" to crow about: three justices.

    The downside of a pre-election vote is that four Republican senators might get skittish and vote to reject (see below). Holding it after the election protects vulnerable senators from taking a very tough vote. They can just express their "concern" and be vague. Even senators who promise to vote against confirmation and who lose would then be free to vote for confirmation with no consequences. Scheduling a vote in a lame-duck session would infuriate the Democrats beyond belief and they would be screaming "hypocrisy" and "cowardice" all day and all night until the election. That could affect those much-desired "suburban housewives."

  • It reframes the election: Trump was losing and needed a reset. This could be it. From now on until November, Trump will try to make the election about abortion. The culture wars are much more favorable territory for him than talking about the 200,000+ Americans who died of COVID-19 due to his lies and incompetence. The Court will certainly be a major topic in the first debate in a week.

  • RBG's death helps Trump: Both sides will be energized by the vacancy, but Republicans are likely to be more energized. The Supreme Court has always been a major issue for conservatives. For many of them, winning (on abortion) isn't the most important thing, it is the only thing. The achievement (or possibility) of a 6-3 conservative majority will really excite them and make up for a lot of Trump's many sins. In contrast, for Democrats who regard climate change, income inequality, racial justice, gay rights, voter suppression, immigration, gun control, health care, or one of so many other issues as tops, judicial appointments don't get much traction with them.

  • Fewer tickets will be split: Having such a dominant issue that affects everything means that almost everyone will vote a straight ticket. This helps more Republican senators than it hurts. It will hurt Sen. Susan Collins (R-ME) because Maine is a very blue state, but it will help Republican Sens. Martha McSally (AZ), Steve Daines (MT), Joni Ernst (IA), Lindsey Graham (SC), and Thom Tillis (NC) because the Democratic Senate candidate is running ahead of Biden. Anti-abortion voters will be reminded how important the Senate is and some of them will come home to the GOP out of fear that a Democratic Senate might reject future Trump appointments to the judiciary if he wins.

  • Few Republicans will care about being called hypocrites: Democrats will trot out 2016 tapes of Republican senators saying that Merrick Garland should not be confirmed because the people should decide. The senators will care not a whit and just say that 2020 is divisible by 101 and 2016 is not so everything is different now. Or that 2016 was exactly 1000 years after the Battle of Assandun and 2020 is not. Or maybe something else. Such a big victory that could influence the country for 30 years is worth being called a hypocrite 30 million times on Twitter.

  • If Democrats win everything, the pressure to pack the Court will be enormous: Democrats will claim Republicans stole two Supreme Court seats and now is time for payback. Their motto will be: "What they did was legal and what we will do is legal. Elections matter." Biden said he was against court packing last year, but he knows that with a 6-3 majority, the Court will probably overturn every law that the Democrats pass on voting rights, campaign finance, immigration, health care, unions, and the environment. At some point he may call Speaker Nancy Pelosi (D-CA) and simply say: "11, 13, or 15?" She could surprise him and say: "Nope: 189." If Congress wanted to do it, nothing prevents it from passing a law making all 180 appeals court judges members of the Supreme Court. Cases would be decided by a random selection of nine justices. Unlikely, but what a bargaining chip that could be.

  • Whatever happens, the Supreme Court will lose: After a huge partisan battle, faith in blind justice and the Supreme Court will nosedive. If Majority Leader Mitch McConnell (R-KY) rams through a confirmation, and it starts deciding controversial public policy issues—which are really up to Congress—by 6-3 votes, people will start seeing the Supreme Court as an unelected mini-legislature responsible to no one. Its prestige and authority will wane. Sooner or later, some president will say: "Justice Roberts has made his decision. Now let him enforce it." And probably sooner.

  • John Roberts will no longer be the swing vote in a 6-3 Court: Recently, Chief Justice John Roberts has occasionally sided with the four Democratic appointees to give the illusion of being an umpire without having to wear a chest protector and hold half a dozen baseballs in his pocket. On a 6-3 Court, if the other five Republican appointees decide to do something, he will be powerless to stop it. He won't even be able to protect the Court's image of a neutral interpreter of the Constitution and the law.

These are some of the known unknowns, but the long-term implications of a 6-3 conservative Court are hard to foresee. For example, states will suddenly become abortion battle grounds. Democrats rarely pay attention to races for the state legislature (but see below). This could change everything big time. With a 6-3 Court shooting down everything a Democratic Congress does, winning the states could be a huge priority. If the Court invalidates the ACA because health care is up to the states, the blue states could band together and pass identical state laws creating a replacement—for blue-state residents only. (V)

More Thoughts on the Supreme Court Vacancy

Perry Bacon Jr. of FiveThirtyEight also made a list of things to keep in mind concerning the Ginsburg vacancy:

  • Will the McConnell rule hold?: In 2016, Mitch McConnell said that the people should first pick a president before a Supreme Court vacancy is filled. Filling a seat this close to an election is unheard of. Here is a list of Supreme Court vacancies that occurred in presidential election years:

    Justice Date of vacancy Days before election Nomination before election? Confirmation before election?
    S. Minton Oct. 15, 1956 22 No No
    R. Taney Oct. 12, 1864 27 No No
    R. B. Ginsburg Sept. 18, 2020 46 ? ?
    R. Trimble Aug. 25, 1828 67 No No
    J. McKinley July 19, 1852 106 Yes No
    C. E. Hughes June 16, 1916 144 Yes Yes
    P. V. Daniel May 31, 1860 159 No No
    H. Baldwin April 21, 1844 194 Yes No
    M. R. Waite March 23, 1888 228 Yes Yes
    A. Scalia Feb. 13, 2016 269 Yes No
    A. Moore Jan. 26, 1804 281 Yes Yes
    J. P. Bradley Jan. 22, 1892 291 Yes Yes
    O. W. Holmes Jan. 12, 1932 301 Yes Yes
    J. R. Lamar Jan. 2, 1916 310 Yes Yes

    So no death of a justice has resulted in a confirmation before the election in the time available before this election (43 days). It's not even close.

  • Could the process even finish before the election?: Maybe. One of the big issues in the confirmation battle is whether the Senate vote will come before or after the election. Here is a table showing how long it took after the nomination to get each of the current Supreme Court Justices confirmed:

    Justice Year Days to confirm
    Brett Kavanaugh 2018 89
    Neil Gorsuch 2017 66
    Elena Kagan 2010 87
    Sonia Sotomayor 2009 72
    Samuel Alito 2005 92
    John Roberts 2005 72
    Stephen Breyer 1994 77
    Clarence Thomas 1991 106

    The Year field indicates the year of the nomination. The average is 82 days. Eighty-two days from today is Dec. 12. If the Senate votes on Dec. 12, by then it is likely that Mark Kelly (D) will be in the Senate and Martha McSally (R) will not, which will change the partisan balance from R53-D47 to R52-D48. The shortest confirmation of the current members of the Court is 66 days. Sixty-six days from today is Nov. 26. Kelly is unlikely to be seated by then, even if he wins, because the final result probably won't be official until Nov. 30. Getting the confirmation done by Election Day would not be a record by any means, but it would be faster than for recent nominees. If Mitch McConnell is determined to get it done before the election, that should be doable. Trump seems to want the vote before Election Day so he can run on "three conservative justices appointed!"

    Historically, the following steps are followed:

    • The president sends a nomination to the Senate
    • The nominee fills out a lengthy questionnaire and undergoes an FBI check
    • The nominee meets with senators who desire a meeting
    • The Judiciary Committee holds hearings
    • The Judiciary Committee votes on the nominee
    • The full Senate debates the nomination
    • The full Senate votes on the confirmation

    If the nominee was recently appointed to an appeals court, some parts of this process can be speeded up, especially the questionnaire and FBI check. Democrats have almost no power to drag the process out. If every Democratic senator wanted a private meeting with the nominee, McConnell could rule that each meeting would last 10 minutes, allowing them all to be finished in a single day. By 8 p.m. there would a tired, but happy, nominee.

  • What happens if an election dispute hits the Supreme Court?: If no new justice is confirmed before the election, theoretically, an election dispute could result in a 4-4 tie in the Supreme Court. That wouldn't be a disaster as there is a clear procedure for handling it: The appeals court ruling holds. But that would not be a satisfying outcome if the presidency were decided by, say, the Arizona Supreme Court. It is worth noting that in 2016, due to the vacancy created by the death of Antonin Scalia, the Court had eight members, but this election looks to be the most divisive one since 1860, and if you were paying attention in fifth grade, you know what happened next.

  • The Supreme Court is now a political issue: The justices really don't like it when the Court is a political football, but that is unavoidable now. The battle could also involve half a dozen Republican senators who may have to vote on a nominee before the election. Their vote could determine the rest of their careers. They would prefer to have the vote after the election, but Trump wants it before. If McConnell gives in to Trump and holds the vote before the election, it could cost half a dozen senators their seats and McConnell his job as majority leader. This puts McConnell in a real bind. If he holds the vote before the election, Trump will be happy but Republicans could lose the Senate. If he holds the vote after the election, Trump will be steaming, but Republicans might be able to hold the Senate.

  • Who Trump chooses is a really big deal: Will he pick someone with a short track record that has a small attack surface? It is a given that the nominee will be an anti-abortion woman. Will she also be anti-worker and anti-environment? How will she be on federalism? May California have higher mileage requirements on new cars and lower pollution levels than the federal government? What are her views on affirmative action? What about campaign finance reform? May a Christian pharmacist refuse to dispense birth control pills to anyone because God told him not to do it? There are more issues in the world than abortion. Tip: During the upcoming Kabuki theater (sometimes called a confirmation hearing), watch for the nominee to say she is in favor of motherhood, apple pie, and the Constitution—and not take a position on anything else. Maybe we need a constitutional amendment saying that if a nominee gets a "yes" vote in the Senate, the new justice is seated but is on probation for 3 years. Then the Senate gets to vote again for lifetime tenure based on what it has learned in the 3 years.

  • Six conservative justices will move government policy sharply to the right: There are a whole host of topics on which the Supreme Court could weigh in, often in direct opposition to Congress and public opinion. If that happens, the demand to pack the Court or have Congress pass a law sharply limiting the scope of its decisions will become unbearable. John Roberts understands that like no other, which is why he sometimes sides with the liberal justices. But if there are five hard-core conservatives on the Court, he will lose that power.

In short, a nomination that is rammed through in an unprecedented hurry (especially in a lame-duck session after the election in which defeated senators provide the necessary votes for confirmation), which then changes the character of the country potentially for decades is going to meet with a lot of resistance and pushback. (V)

Poll: New President Should Pick Ginsburg's Successor

A new Reuters/Ipsos poll released yesterday showed that 62% of American adults agree that the Supreme Court vacancy should be filled by the winner of the presidential election. Meanwhile, 23% disagreed with this concept, and the rest weren't sure. Eighty percent of Democrats but also half of Republicans don't want the position filled until the new president is inaugurated. The poll also showed that 30% of adults were more likely to support Joe Biden as a result of RBG's death and 25% were more likely to support Trump. An additional 38% said that her death had no impact on how they plan to vote.

Needless to say, Trump and McConnell are not going to pay any attention to this poll or any internal polls that tell them the same thing. They will forge ahead and try to ram through the nomination. However, if more polls come out showing that voters want the new president by a margin of almost 40 points, it may give some vulnerable senators something to worry about. (V)

Collins: New President Should Nominate Ginsburg's Successor

Susan Collins, one of the senators struggling to be reelected in an increasingly blue state, came out on Saturday and said that whoever wins the presidential race should pick Ruth Ginsburg's successor. This decision was not the result of the poll cited above; she has held this view for a while. Specifically, she said: "In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3."

If you read that statement carefully, it is a statement of general principles. It does not say what she will do when Trump nominates someone and Mitch McConnell brings it up for a vote. Logically, she should reject any candidate, no matter how qualified, just so the new president gets a chance after Jan. 20. But logic often gives way to power politics, so we don't really know what she will do when she is forced to vote on the confirmation of a nominee. Still, after a statement like this, a vote to confirm a nominee will make her look like such a liar and hypocrite, that it will almost certainly doom her reelection bid—if the vote comes before the election. Of course, if the vote comes after the election, cries of "hypocrite" won't matter.

So why did she make the statement? Very likely, she doesn't want the vote to happen soon and this is her way of telling McConnell not to hold it before the election. Sen. Lisa Murkowski (R-AK) went on the record yesterday saying she does not think the vote should be held before Jan. 20. If two more Republican senators go public with what are essentially votes to reject any nominee and hold firm, McConnell may have to postpone the vote until at least after the election. He certainly doesn't want to bring a nomination to the floor and have it be defeated before the election.

Another vulnerable senator, Sen. Thom Tillis (R-NC), took the opposite tack. He said that Donald Trump should make a nomination and the Senate should vote on it before the election. This is a massive gamble for him, since it will not play well with North Carolina Democrats or Republicans who approved of the Senate's not voting on Merrick Garland in 2016 but think the same rules should apply to nominations from presidents of both parties.

Similarly, Sen. Martha McSally (R-AZ) has made the same calculation as Tillis: Getting the Republican base on board is more important than the damage a vote to confirm will do with Democratic voters. Sen. Lamar Alexander (R-TN), who is retiring, said yesterday that when there is a Supreme Court vacancy, the president is expected to make a nomination and the Senate is expected to vote on it. He must have recently discovered this, since in 2016 when Merrick Garland was the nominee, he wasn't aware of this principle. Sen. Lindsey Graham (R-SC), in a development as predictable as the sun rising in the east, has also done a 180 on this subject. In March 2016, he said: "If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination.'" On Saturday, however, Graham announced that he would support Trump's nominee. Clearly, as far as the South Carolina Senator is concerned, principles are for suckers.

As more Republican senators chime in, we will see what the lay of the land is. The Washington Post has put together a tracker; they have 2 Republicans (Murkowski and Collins) opposing a pre-election vote, 1 Republican (Chuck Grassley, R-IA) who previously took that position and has made no updates since, 21 Republicans who said this weekend that a vote should be held as soon as possible, and 29 Republicans who have yet to make a statement one way or another. In the end, we expect nearly all Republican senators to fall in line. However, four Republican senators to watch are Dan Sullivan (AK), Cory Gardner (CO), Mitt Romney (UT), and Grassley. The first two are in tight reelection battles and the latter two could conceivably discover body parts they had forgotten they had. (V)

Biden Has a Plan to Deal with RBG's Death

No, he is not going to provide a list of judges he could nominate. And he is not going to talk about how he wants to keep the Supreme Court from overturning Roe v. Wade. He is going to talk about the pandemic, health care and the Republicans' efforts to get the Supreme Court to overturn the ACA. It was a kitchen-table issue (health care) that won the Democrats 40 seats in the House in 2018 and talking about how the Republicans want to use the Supreme Court to take health care away from 20 million Americans ties the vacancy to health care. Biden's rally cry could be: "Do you or someone you know have a pre-existing condition? If so, a Republican-dominated Supreme Court will take away your or their health care." This could be the Democrats' answer to the Republicans' talking about abortion.

That is not to say that young Democratic surrogates will keep quiet about abortion. It is a much bigger issue for millennials than for seniors. If Biden can get Rep. Alexandria Ocasio-Cortez (D-NY) out on the campaign trail telling young voters that if they don't vote, abortion will become illegal, it could be a powerful weapon. If young voters are his margin of victory, he will owe her one, and she is already savvy enough to know when to call in that chit.

Biden has an unexpected opportunity in the upcoming confirmation battle: his running mate. Sen. Kamala Harris (D-CA) is a member of the Senate Judiciary Committee. She is also a former AG and knows how to grill witnesses. She will use every tool she has to confront the nominee during the confirmation hearings and footage of that will surely be used in the campaign. (V)

Michigan Judge Rules that Late Ballots Must Be Counted

On Friday, Michigan Judge Cynthia Stephens ruled that ballots that arrive late must be counted, just like provisional ballots, which are also counted in the days after Election Day. She set the deadline at 14 days after the election, or Nov. 17.

This ruling, unless overturned by a higher court, means that the problems with the USPS delaying mail in general and ballots in particular will have a much smaller effect than expected in Michigan, a key swing state with 16 electoral votes.

In addition, the judge also ruled that anyone could turn in a ballot at an election office for another person. Previously, ballots had to be turned in by the voter or by a family member. Now a Michigan voter can give a ballot to a friend or neighbor to turn in. This could matter for voters who are unable to personally turn in their ballot and who have no family members close by.

Last week, an appeals court in Pennsylvania ruled that ballots arriving up to three days after Election Day must be counted. These two rulings alone mean that final results from two key swing states may not be known for days, or even weeks, after Election Day. Nevertheless, it is possible for the television networks to call a state election early based on the margin between the candidates, the number of outstanding ballots yet to be counted, and polling data giving information on how the distribution of votes went in the absentee ballots. For example, if Trump is ahead by 20,000 votes on Election night but 600,000 absentee ballots are yet to be counted and three top-flight pollsters say that absentee voters went for Biden 70% to 30%, the networks might be willing to call the state for Biden on Election Night. (V)

Democratic Donations Are Skyrocketing

ActBlue, the Democratic fundraising engine, reported taking in $17 million between 9 p.m. EDT and midnight EDT on Friday. The money started coming in as soon as the death of Ruth Bader Ginsburg was announced and really took off after Mitch McConnell said the Senate would vote on a successor. By Saturday morning, the donations had reached $30 million. By Saturday afternoon, the total surpassed $46 million. Within 24 hours, the total was $80 million, crushing the previous daily record of $42 million. By Sunday morning at 9:30 a.m., it was $97 million. Now it is over $100 million. The number of donors wasn't announced, but typically small donors give $20 to $30. That would put the number of donors at 3-5 million. That may sound like a lot, but it will take 65 million votes to win the election, so having a small but very enthusiastic group of donors should not be blown out of proportion.

The $100 million includes nearly $10 million specifically earmarked for the Super PAC Get Mitch or Die Trying, which means Democratic Senate hopefuls are going to have plenty of support as we approach the home stretch. WinRed, the Republicans' counterpart, has not announced its totals for the weekend.

Also of note is that the DSCC raised $27 million in August, the most it ever raised in a single month. The NRSC raised $19 million in August, also the most it ever raised in one month. With all this money, the battle for the Senate will get very intense in the final six weeks.

Finally, yesterday the Biden campaign announced that together with the DNC it has $466 million in the bank, giving it an edge of $141 million over the Trump campaign and RNC going into the homestretch. But remember, in 2016, Hillary Clinton had a huge financial advantage over Trump. A lot of good it did her. (V)

Poll: Biden Has a Big Lead among Latinos

A new NBC/WSJ/Telemundo national poll shows that Joe Biden leads Donald Trump among registered Latinos 62% to 26%. However, it is useful to note that in Sept. 2016, Hillary Clinton led among Latinos 63% to 16%. Not surprisingly, Biden does better with young Latinos than older Latinos. Among those 18 to 39, he gets 71% of their votes.

Nevertheless, Biden has a problem—and an opportunity—with Latinos. He has to get them to vote. Their turnout record is not so great, so he will have to work on that. In particular, Latinas really don't like Trump. Only 22% will vote for him, so if Biden can motivate (young) Latinas to vote, that could help him in Arizona, Florida, and North Carolina.

Among all voters, not just Latinos, Biden leads Trump 51% to 43%, consistent with other national polls. (V)

Four More States Begin Voting This Week

In-person voting just got underway in Vermont, Michigan, and New Jersey. Illinois joins the list on Thursday. They follow Minnesota, South Dakota, Virginia, Wyoming, and Pennsylvania, the first five states to open in-person voting. So by Thursday, even before the first presidential debate, nine states will have in-person voting.

After that, there will be a pause in new states starting to vote in person. But from Oct. 1 to Oct. 10, Maine, Montana, California, Iowa, Nebraska, South Carolina, Indiana, New Mexico, Ohio, and Arizona will start.

In addition, 27 states will have already started mailing out the absentee ballots by Thursday. Here is a table showing what the voting status will be as of Thursday:

State In-person voting started? Absentee ballots sent out?
Alabama No Yes
Arkansas No Yes
Delaware No Yes
Georgia No Yes
Idaho No Yes
Illinois Yes Yes
Indiana No Yes
Kentucky No Yes
Louisiana No Yes
Maryland No Yes
Michigan Yes Yes
Minnesota Yes Yes
Mississippi No Yes
Missouri Yes Yes
New Jersey Yes Yes
North Carolina No Yes
North Dakota No Yes
Oklahoma No Yes
Pennsylvania No Yes
Rhode Island No Yes
South Dakota Yes Yes
Texas No Yes
Vermont Yes Yes
Virginia Yes Yes
West Virginia No Yes
Wisconsin No Yes
Wyoming Yes Yes

In the other states, no voting has started yet. Nevertheless, for more than half the states, the election is already upon us. (V)

Democrats Are Eyeing the Texas and North Carolina State Legislatures

While the presidential race and Supreme Court battle are sucking up most of the political oxygen, down in the weeds, Democrats are making a real play for the Texas state House and the North Carolina state legislature. Both states are large and have a history of extensive gerrymandering and voter suppression. Picking off the Texas House would block a gerrymander in 2021. Flipping six seats in the North Carolina House and five in the North Carolina senate would give the Democrats the trifecta if Gov. Roy Cooper (D-NC) is reelected. Together, the two states will have about 53 congressional seats for the next 10 years. Both chambers of the Arizona state legislature are also in play. These are the only big states where Democrats could flip a state chamber.

Texas Democrats think that 15-20 of the 83 Republican-held state House seats could be in play, especially in suburban areas. Nine of those districts—exactly the number the Democrats need to flip the House—were carried by Beto O'Rourke. Democrats are following their successful 2018 strategy by recruiting women of color and veterans to run in suburban districts where disgust for Donald Trump runs high.

Republicans know they are vulnerable and have hired a Texan (naturally) to create a new super PAC to raise money for the state races: a fellow named Karl Rove. Texas is a big and expensive state, so his fundraising prowess will surely come in handy. But flooding the airwaves gets you only so far when all races are national and Trump could drag down state representatives he's never even heard of. Also, Karl Rove's last real success as a political operative was 16 years ago, when he helped pull George W. Bush over the finish line. We're not so sure the game hasn't passed him by, in the same way that James Carville is no longer a Democratic rock star.

The reason North Carolina is a big target is that the legislature draws the map and the governor has no veto power over it. So if the Democrats want to block another gerrymander, they need to capture one of the chambers. They are targeting a dozen House seats and nine Senate seats, mostly in suburban areas around Charlotte and the Research Triangle area. Last quarter, the Democrats greatly outraised the Republicans, but the GOP is now wide awake and trying to at least restore parity.

Arizona is also a target, but not to stop gerrymandering. An independent commission draws the maps in Arizona. Still, Arizona is the state most likely to go from a Republican trifecta to a Democratic trifecta in the next 2 years. If Biden wins Arizona, the state ends up with two Democratic senators, and the blue team wins the governor's mansion in 2022 to get a trifecta at the state level, that would be the biggest partisan shift for any state within recent memory. As of 2016, the Republicans controlled everything. (V)

Trump's Lawyers: Census Doesn't Have to Be Accurate

The Constitution calls for a census every 10 years. There is no dispute about that. But on Friday, the Trump administration's lawyers said that while there has to be a census, the Constitution doesn't require the resulting count to be accurate. Alexander Sverdlov, the Justice Department lawyer arguing the case in court on Friday, maintained that stopping the count in September would miss some hard-to-count people, but that was fine since all the Constitution demands is a census, not a correct census. Originally the counting was to conclude at the end of October, but Donald Trump wants to stop it in September. This would have the de facto result of missing many minority residents who tend to avoid the government, as well as undocumented immigrants, who definitely try to avoid the government but who count for census purposes. The uncounted are mostly in blue states.

The lawyer for the groups suing to have a complete count, Melissa Sherry, said that if you accept that an inaccurate count is fine, you could also argue that having one enumerator walk across the country for a week counting everyone he saw would also qualify as a census.

The case is playing out before Lucy Koh, a district judge in Northern California. She has already issued an order preventing the government from terminating the census while the case is playing out in court, and has expressed irritation with the President's legal team. (V)

Today's Presidential Polls

Florida, Georgia, North Carolina, and Texas are close. Who knew? While Donald Trump talks about turning Minnesota red, there is little evidence that the state is going to flip. (V)

State Biden Trump Start End Pollster
Florida 48% 46% Sep 15 Sep 18 YouGov
Georgia 45% 46% Sep 12 Sep 16 Redfield and Wilton Strategies
Minnesota 51% 42% Sep 12 Sep 17 Redfield and Wilton Strategies
Montana 42% 49% Sep 14 Sep 16 Siena Coll.
North Carolina 51% 49% Sep 16 Sep 18 Emerson Coll.
Texas 46% 48% Sep 15 Sep 18 YouGov

Today's Senate Polls

Jon Ossoff could have run in either the regular election against Sen. David Perdue (R-GA) or in the jungle primary against Sen. Kelly Loeffler (R-GA). It looks like he picked the right race, as he is running even with Perdue.

Montana is an interesting case. While Donald Trump is comfortably ahead of Joe Biden in the presidential race, Gov. Steve Bullock (D-MT) is neck and neck with Sen. Steve Daines (R-MT). This is due to Bullock's personal popularity. While Montanans are generally somewhat conservative, they like Bullock as a person. He's an easygoing westerner and that plays well in the Big Sky country. Also noteworthy is that in the poll, the Green Party got 3.5% of the vote. However, the Green Party will not be on the ballot because it failed to follow the law when submitting its petition to be on the ballot. A key question is: What will the GP supporters do? If they all say: "I'm not voting for the lesser of two evils" and stay home or refrain from voting in the Senate race, Daines might have a tiny edge. But if they hold their collective noses and vote for Bullock (who is a populist but not an AOC-style progressive), Bullock could be a tiny bit ahead.

If you look at our Senate map, you will see that Democrats are projected to win or hold 51 seats, with three incumbent Republicans, Dan Sullivan (AK), David Perdue (GA), and Lindsey Graham (SC), tied. If Democrats were to win them all, that would give them 54 seats in the new Senate and a comfortable majority, not to mention enough votes to abolish the filibuster, even against the wishes of Sen. Joe Manchin (D-WV). But in politics, a week is a long time and 6 weeks is a very long time. One interesting note though is that many of the close Senate races are in states that tend to be "good-government" states, without a history of electoral shenanigans. These include Arizona, Montana, Colorado, Iowa, and Maine. Georgia and South Carolina are definitely not on this list, however. (V)

State Democrat D % Republican R % Start End Pollster
Georgia Jon Ossoff 43% David Perdue* 43% Sep 12 Sep 16 Redfield and Wilton Strategies
Minnesota Tina Smith* 51% Jason Lewis 36% Sep 12 Sep 17 Redfield and Wilton Strategies
Montana Steve Bullock 44% Steve Daines* 45% Sep 14 Sep 16 Siena Coll.
Texas Mary Hegar 41% John Cornyn* 46% Sep 15 Sep 18 YouGov

* Denotes incumbent

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---The Votemaster and Zenger
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