Biden Continues to Have a Strong National Lead over Trump

A new Washington Post/ABC News poll taken Monday through Thursday (thus, after the death of Ruth Ginsburg) has Joe Biden leading Donald Trump 54% to 44% among likely voters in a two-way race, with only 2% undecided. When the Libertarian Party and Green Party candidates are included, Biden's lead drops to 6 points, but historically, third-party candidates poll better than they actually do on Election Day. What is especially noteworthy is that three-quarters of the calls were made to cell phones, so the demographic of people without a landline was well covered.

The results are essentially unchanged from a year ago. Here is a chart showing that. Trump has never led in this poll and the two have been within the margin of error only briefly, in February and April.

Biden's lead is largely due to women. Among men, Trump leads 55% to 42%. Among women, Biden leads 65% to 34%. Since slightly more women vote than men, that's the whole story. It will be interesting to see in a week or two if Trump's nomination of Amy Coney Barrett to the Supreme Court helps him with women. It is worth noting that Trump's lead with men right now is the same as it was at this point in 2016, but Biden's lead with women is twice as big as Hillary Clinton's was. It is perhaps surprising that women are much more willing to vote for a man with a bit of baggage (Anita Hill) than for an actual (and highly qualified) woman. Of course, it is entirely possible that women are so turned off by Trump that this has nothing to do with Biden personally and they would vote for a neutered yellow dog rather than Trump. Suburban voters are also split by gender, with Trump +22 with suburban men and -32 with suburban women. Apparently, suburban women are just not afraid that teeming hordes of Black and brown people are coming to burn their houses down.

The other great divide in the polling is race. Trump is ahead with white voters 52% to 46%, which is smaller than his 16-point lead in Sept. 2016. Among non-white voters, Biden leads by a whopping 53 points, 76% to 23%. A smaller split, but possibly significant in Florida and Arizona, is how seniors will vote. Biden is leading among them 52% to 47% now. In 2016, Trump won this group by 7-9 points.

Interest in the race is at record levels, with nearly 60% saying they are following the race closely. This is the highest level in 20 years. Nearly 90% of registered voters say they are certain to vote with 52% so excited they plan to vote (in person or by mail) before Election Day.

Enthusiasm among registered voters who favor Trump is especially high, with 65% of them enthusiastic about voting for him (vs. 47% for Biden voters). However, that is countered by the fact that 70% of Biden voters see a Trump victory as a catastrophe for the country while only 59% of Trump voters view a Biden win that way. In other words, Trump is the center of attention, which he loves. Republicans are for voting for Trump while Democrats are voting against Trump. Biden is mostly a placeholder for a generic Democrat.

Voters give Trump very poor marks on everything except the economy. On that, 40% rate it as good or excellent whereas 59% see it as not so good or poor. It probably depends on whether jobs or the stock market has your attention. So, all in all, the race is stable as the voting begins. Tomorrow's debate will be Trump's main chance to shake it up, but if 96% of the voters have already made up their minds, that may be a tall order.

The WaPo and ABC aren't the only ones who see things this way. A New York Times/Siena College poll taken Tuesday through Thursday has Biden at 49% and Trump at 41%, an 8 point lead, with voting already taking place in over a dozen states. Once that is baked in, there is no way for Trump to unbake it. Also significant is that in 2016 at this point, Hillary Clinton's lead was only 2 points, far less than Biden's now. And in many polls, Biden is at or over 50%. Clinton never managed that at all.

The poll also found a strong majority (56% to 41%) who favor having the election winner fill the Supreme Court vacancy. Also, 60% want to keep abortion legal while 33% want to ban it. Finally, 57% want to keep the ACA and 38% want to kill it. None of this helps Trump. (V)

New York Times Obtains Trump's Tax Returns

Maybe the October surprise is happening a bit early this year, as the New York Times has obtained Donald Trump's tax returns. Two people are now hopping up and down, angry as hell: Donald Trump and Marty Baron (the editor-in-chief of the Washington Post). The Times declined to explain how it got them, but it said it got them from sources that had legal access to them. This could be someone within the Trump Organization, within Mazars (his accounting firm), or someone in a different organization. The report on them went up on the website Sunday evening, but no doubt more will follow, as the Times is sure to hire some forensic accountants to scour them.

In 10 of the past 15 years, Trump paid no taxes at all because he lost more money than he made. In contrast, in 2016 and 2017, he paid $750 in federal taxes each year. That's right, $1,500 total in the first two years of his political career. Now it is starting to come into focus why he has fought tooth and nail to hide the returns: He is under a great deal of financial stress, with hundreds of millions of dollars in debt coming due soon on more than $300 million in loans that he has personally guaranteed. Also out there is a battle over the legitimacy of a $73 million tax refund he applied for and got. If he loses that audit battle with the IRS, that could cost him over $100 million.

One thing to keep in mind about the article and the follow-up articles is that the information comes from Trump's claims on his tax returns. They have not been audited by an independent agency and may not bear any relationship to the truth. The good news for Trump is that the returns do not reveal any previously unknown connections to Russia. The bad news for him is that he isn't a very good businessman. From the article: "Ultimately, Mr. Trump has been more successful playing a business mogul than being one in real life."

Trump made $427 million from "The Apprentice" and related projects. He invested most of it in money-losing golf courses. In fact, his financial condition in 2015 was so bad that it lends credence to the idea that he ran for president not because he thought he could win (or even wanted to win), but because he thought the attention from the run would boost the value of his brand. In 2018, Trump announced that he made $435 million in revenue and seemed proud of it. But revenue is only part of the story. He somehow forgot to mention his bottom line: a loss of $47 million. Many of his businesses lose money. His golf courses and hotel in D.C. lose millions—maybe tens of millions— of dollars year in, year out. Years ago he sold all his stocks to help him plug financial holes. The picture that emerges is that of a man in deep financial doodooo, not a brilliant businessman raking it in.

What also emerges from the tax documents is how Trump is trying to milk the presidency for all it is worth to cover his debts. His hotels have become magnets for (foreign) lobbyists wanting to get into good graces. He needs that money badly to cover the loans soon coming due. Much of this is probably in violation of the Constitution's emoluments clause.

So how did Trump manage to avoid paying any taxes in so many years? By 2005, he had used up the $1 billion in losses from his failed casinos and earlier projects. He went on a buying spree using the money he earned from "The Apprentice." But nearly all the businesses he bought ended up losing money. Consider the Trump National Doral golf club in Florida. Trump bought it in 2012 for $150 million and has pumped another $213 million into it since then. Yet the bottom line on it is negative $162 million. It's a giant money pit into which money flows and never comes back. The other golf courses aren't any better. His three courses in Europe have lost $63 million. On all his courses combined, he has lost $315 million. His hotel in D.C. lost $56 million through 2018, the last year of tax returns the Times got.

Now on to the Trump Corporation. It has lost $134 million since 2000. The President kept it afloat by personally pouring in his own money. However, Trump Tower has made a profit of over $20 million a year.

The article is very long and goes on and on about details and tax maneuvers. It is too long to summarize all of it here. Suffice it to say that Trump is a terrible businessman and there is much in the returns that show deductions that are questionable at best and downright illegal at worst. Indeed, one could argue that he is, in effect, running a Ponzi scheme in which he moves money around as necessary in order to keep the whole house of cards from collapsing.

The political fallout from the first article is hard to predict. Many of his supporters will be shocked to learn that they voted for him because he claimed to be a great businessman and it turns out he is a fraud. But once they have committed to him, probably most of them will not be willing to admit they were duped and switch to being Biden fans. So the impact could be minimal. Also, true to form, Trump has labeled this fake news and dismissed the report. But the Times has already said there will be more articles, and they could be even more devastating than this one.

We will find out soon how Trump reacts. Will he sue the Times for invasion of privacy? He could, but it is tough for someone as public as the president to claim much privacy. Further, per the Streisand Effect, a lawsuit would serve to draw even more attention to the matter. And the Times lawyers would have a field day getting the judge to issue subpoenas for all kinds of stuff that Trump does not want disclosed. (V)

Amy Coney Barrett Is on the Ballot This November--and in 2022

Barrels of ink and billions of pixels have already been devoted to Amy Coney Barrett and her possible votes on the ACA and abortion. Conservatives call her a brilliant jurist who will right the ship of state. Progressives say she will move the country back to the 1950s, which they don't think were so great for everyone. Her decisions as a judge and writings as a law professor are many, but here is a brief summary of some of her views:

• She believes that abortion is always immoral but is more likely to try to cripple Roe v. Wade than overturn it
• Her beliefs make it likely that she would frown on pandemic-related measures forcing churches to close
• She has strongly criticized the ACA, especially parts about contraception and gender-transition surgery
• She is likely to oppose government regulations limiting the freedom of companies to pollute as they wish
• She is probably not a fan of the administrative state, although she hasn't ruled much in that area
• She agrees with Education Secretary Betsy DeVos that college men accused of sexual violence are entitled to full due process

What we don't know (and no one knows yet) is how her nomination and the Senate confirmation vote will affect the November elections.

Donald Trump wants the vote before the election, and he generally gets what he wants. This way he can brag about an actual achievement: The nomination and confirmation of three Supreme Court justices. From a political perspective, we think he would have been better off quietly telling Senate Majority Leader Mitch McConnell (R-KY) to invoke the "McConnell rule" and not hold a vote at all, "arguing" in public with McConnell. Then his base (1) would know who he would nominate in a second term and (2) be very strongly motivated to vote. But that's not how his short-term brain works.

If anything, the decision to hold a vote before Election Day may work against Trump. His base will soon know that they have a 6-3 majority on the Court now and no seats are likely to become vacant before 2024, so for abortion-first voters, voting isn't so important now.

Democrats are likely to start talking about how Barrett will vote to take health-insurance away from 20 million people unless Joe Biden wins and pushes for a new ACA that gets around whatever alibi the Supreme Court dreams up to kill it. This could affect the vote of the 20 million people who are concerned about losing their health insurance in the middle of a pandemic. Some of them are surely independents or Republicans for whom their insurance via the ACA is important to them.

Another factor to consider is how the Senate hearing goes. Sen. Kamala Harris (D-CA) is on the Judiciary Committee. She is also a former state AG and knows how to grill witnesses. If the Democrats on the Committee are smart, they will cede all of their time to Harris and let her interrogate Barrett, especially over her remark to Notre Dame law students that their legal careers should be a means to "building the kingdom of God." Harris could ask her if her own legal career has been about building aforementioned kingdom and whether that would suddenly cease if she gets her new job.

A side benefit of Democrats putting Harris in the spotlight is that some progressives don't like her due to her track record as California AG, which featured putting a lot of Black men in prison. If she rakes Barrett over the coals over that statement and generally the issue of separation of church and state, it could motivate some progressives who were planning to sit this one out to vote for Biden/Harris. Harris could ask: "Do you feel that a couple that has a deep religious belief that they can punish their children as they wish for misbehavior trumps state child-abuse laws?" Barrett will try to weasel out of taking any position, but watching Harris try to corner her may help pick up some votes on the left for the ticket.

But the biggest effect of Barrett's nomination and confirmation vote may be on the control of the Senate. Republican Sens. Martha McSally (AZ), Cory Gardner (CO), and Thom Tillis (NC) all said they would vote to confirm anyone Trump nominated, since the judge's qualifications are unimportant to them. All that matters is the Trump Seal of Approval. All three were trailing in the polls and a vote to confirm Barrett a week or two before the election will probably seal their fates. Sen. Susan Collins (R-ME) will vote no, but she's probably toast already and nothing can save her. Sen. Lisa Murkowski (R-AK) isn't up until 2022, and her no vote might actually help her then because Alaskans like folks who show some spine. Sen. Lindsey Graham (R-SC), who is in a surprisingly tight race this year, will get lots of opportunity to suck up to Trump on television shortly because he is chairman of the Senate Judiciary Committee. That might be enough to save his neck. There are tight Senate races in Iowa and Montana, but it is too early to tell what the impact of the vote will be there.

Yesterday, Speaker Nancy Pelosi issued a warning to the Republicans: If they ram Barrett through and the Supreme Court rules that the ACA has to go, then the 2022 election is going to look like the 2018 election (in which the Republicans lost 41 seats in the House). In addition, potentially vulnerable Republican Sens. Rob Portman (OH), Pat Toomey (PA), and Ron Johnson (WI) will be up for reelection. Sen. Richard Burr (R-NC) is going to retire in 2022, leaving an open seat in purplish North Carolina. If Sen. Chuck Grassley (R-IA), who will be 89 on Election Day 2022, retires, that open seat will also be up for grabs. (V)

Trump's Debate Prep: Calling Biden Dumb and a Good Debater

Tomorrow evening in Cleveland, Donald Trump and Joe Biden will meet for the first presidential debate of 2020. It may be Trump's last chance to reset a race in which he has been behind from the start. He has been preparing for it in a way he is most comfortable with: calling his opponent names. Only he doesn't seem to have made up his mind which names. First he said of Biden: "This guy doesn't have a clue. He doesn't know where the hell he is. This guy doesn't know he's alive." He also said: "He's a dumb guy. Always known as a dumb guy."

Most observers of politics don't think it is wise to lower expectations for your opponent. If people swallow what Trump is saying and then see tomorrow that Biden doesn't drool all over himself and more than half his sentences contain a subject and a verb, they are likely to think Biden did very well.

To prevent that reaction, Trump also said of Biden: "He's got a lot more experience. I've got 3½ years." The Democratic nominee also is an experienced debater, which is actually true, since Biden took part in 12 debates during the primaries. According to Trump, Biden is dumb but experienced and sleepy but a good debater. Clearly a man for all seasons.

Trump's campaign staff knows setting the bar low for your opponent is, well, dumb. Tim Murtaugh, the communications director for the campaign, tried to fix things by telling Fox News that Biden "spent decades in the Senate where all they do is debate." Murtaugh has also frequently noted that while Biden makes gaffes in ordinary interviews, in debates he is careful and rarely makes them. But 99% of the country will hear Trump's take on Biden not Murtaugh's.

Trump talked with some advisers this past weekend about the now-known topics for the first debate, but that's it. He is not going to do any mock debates. He is just going to go with his gut and hope Biden makes gaffe after gaffe. But Biden knows that the debate tomorrow will be the most important 90 minutes of his life and could decide whether he becomes president or not. Despite what Trump says, he is not senile and will be extremely careful during the debate.

Consequently, in contrast to Trump, Biden is cramming and holding mock debates, with former White House general counsel Bob Bauer playing Trump. Bauer doesn't look anything like Trump. He looks like this.

In 2016, Trump stand-ins put on Trump costumes, but Bauer won't do that. Instead he will mimic what he expects to be Trump's style and strategy. What Biden will also do besides cramming and mock debating is holding sessions in which aides pepper him with questions at high speed, making him answer quickly.

Although Bauer will take part in the mock debates, an even more important figure in Biden's prep is Ron Klain, Biden's former chief of staff and someone who knows Biden's strengths and weaknesses better than anyone else. Klain is a former Supreme Court law clerk and was also the chief counsel to the Senate Judiciary Committee during the confirmation hearings for Ruth Bader Ginsburg. During the Ebola scare, he was Barack Obama's Ebola czar. He was also at the center of Hillary Clinton's debate prep team. In short, he is a pretty good match for the moment.

Trump's strategy is likely to be pretty much ignore all the questions and try to provoke Biden. If moderator Chris Wallace asks: "How come the U.S. has 200,000 dead from COVID-19 and other countries have done far better?" Trump could say: "Yeah, but I didn't rape Anita Hill on the floor of the Senate, like Biden did." This puts Biden on the spot. Does he respond to Wallace or to Biden? If he is not careful, the debate will come down to 100 outrageous lies from Trump and Biden spending his 45 minutes trying to bat them down.

If this happens, Trump wins because what his base really, really likes about him, more than the justices and judges, is his ability to make liberals' blood boil. An awful lot of them would cheer on such a performance, thinking: "Wow, he put that pinko Commie liberal in his place. Whatta guy! I love him." Democrats will be furious, but they aren't Trump's target audience. What he wants to do is get his base excited and be sure to vote.

What Biden could do is fundamentally ignore Trump and stay cool and collected, depriving Trump of a win. Maybe just answer a question about COVID-19 by saying: "Trump's nose is now at 4 inches and still growing. As to your question, Chris, other countries have competent leaders and ours doesn't." Then Biden's next answer could start: "His nose is now at 6 inches." Or: "Time to get out the yardstick for his nose." Toward the end, maybe say: "His nose is now at 4 feet. He's not going to fit in the elevator to leave the hall." So he could answer the questions directly, but as asides ridicule Trump and make him look weak to trigger him.

An unknown is how Wallace will manage the debate. The moderator has already said he will not do any real-time fact-checking, but he could ask follow-up questions that wouldn't exactly be fact-checking but would put Trump in a bind. For example: "You just said you've done an A+ job of handling COVID-19. How do you account for the fact that the U.S. has more than 20% of the world's deaths despite being home to less than 6% of its population?" Similarly, if Trump keeps going after his time is up and generally tries to bully Wallace, how will Wallace respond? Trump is at a bit of a disadvantage here because he can't say: "You and your entire network (Fox) are biased against me," as he could say if CNN's Anderson Cooper were the moderator.

The Debate Commission co-chair, Frank Fahrenkopf Jr., said yesterday that he doesn't expect the moderators to be fact checkers. But Wallace will be the one on stage, not Fahrenkopf, and it's his decision what to do, if anything, in the face of any egregious lies. Although he works for Fox News, Wallace regards himself as being a serious journalist and not someone who is bullied easily.

Yesterday's news about Trump's tax returns could prove to be a godsend to Biden, which may even explain the timing for the article. Trump hates to look weak, and Biden could constantly taunt him with how weak he is. As in: "If we define Warren Buffet as 1.0 units of wealth, you are not even a nanoBuffet." Or: "Real businessmen make money, like Bill Gates and Steve Jobs. All you can do is lose money. Any fool can do that." With enough taunting, Trump could explode and say something damaging. (V)

The Debate Spin Room Is No More

Back in the old days (2016), after a presidential debate, each candidate had surrogates in the "spin room" to explain to the media why their candidate "won" the debate. Due to the pandemic, there will not be any buzzing spin rooms tomorrow. Instead, spinning will be digital. The Biden campaign will have three small teams on "spin room" duty. One will push out video clips and talking points after the debate to Facebook, YouTube, Twitter, and other popular digital platforms. The second will focus on sending out content during the debate to supporters via email and other channels, with the intent of shaping public opinion in real time. The third team, "Rebel Alliance," will focus on liberal influencers, such as progressive Facebook pages, websites, etc., in an attempt to mold social media after the debate. The campaign is also planning a digital ad buy on Google based on terms that come up during the debate.

The Trump campaign is no doubt also planning targeted ad buys and pushing its views to social media, but refused to talk to Politico about its strategy.

Many political operatives see the current shift that regards the social media reaction to the debate as more important than the debate itself as fundamental a shift as the first debate between John Kennedy and Richard Nixon. Kennedy won among television viewers due to his youth, vibrancy, and makeup compared to the sweaty un-made-up Nixon. Radio listeners thought Nixon won. In 2012, Barack Obama was seen as having lost the first debate. His adviser David Axelrod read him the riot act afterwards, telling him that it is not on the level, not like a trial, not a debate, and certainly not about giving good answers to questions. It is a performance, and Obama performed poorly. Starting with the next one, it was all about theater. But this year the real battle may be on Twitter and Facebook after the debate. The winner may be determined by tweets and likes and views, not who gave the best answers. In fact, what both campaigns are really hoping for is not a well-thought-out answer to some question the moderator poses, but a 15-second video clip that goes viral and is viewed 10 million times. That is what it is all about. (V)

Trump Has Thousands of Lawyers Already Working to Contest the Election

Spinners aren't the only major players in the election. So are the lawyers. Donald Trump has already hired dozens of lawyers from three top law firms: Consovoy McCarthy, Jones Day, and King & Spalding. They will supervise thousands of volunteer lawyers across the country who are ready to file lawsuits as soon as the polls close. In fact, some of them have already written their briefs, ready to file at 9 a.m. on Nov. 4. In 2020, the Supreme Court stopped the Florida recount before it was finished, and Trump's lawyers have no doubt studied the 2000 briefs and decision and will file lawsuits asking the counting of absentee ballots to cease immediately. Legally, they don't have a prayer of succeeding, but who knows, they might get a Republican judge who orders counting to stop. That would certainly gum up the works.

Trump's lawyers are going to focus on two areas: mail-in ballots and deadlines. The first part will argue that any technical irregularity in mail-in ballots is reason to throw them out. If a voter is named "John Smith" and he neglected to put a dot on the "i" in Smith, that ballot should be discarded—but only if it comes from a blue precinct or county. USPS didn't bother to put a postmark on the envelope (or put one on that is illegible)? Toss the ballot. Signature on the envelope is in pencil or is 0.3 mm shorter than the one on file? Move it to the shredder.

The second part will argue that court-imposed extensions to when ballots can be counted are illegal and/or unconstitutional. In multiple states, judges have extended the date by which a ballot has to arrive to be valid (see below). The legal team will try to get appeals courts and the Supreme Court to rule that any ballot received after Election Day is invalid and may not be counted. That argument might work in the Supreme Court if state law says only ballots arriving by Election Day count. If voters later sue because their ballots were mailed in plenty of time and they hadn't expected the USPS to take 3 weeks to move a ballot 1 mile to the elections office, they will be told that it is their own fault for not voting in person.

Another area the lawyers will try is to claim that absentee ballots are subject to fraud. There is no evidence for that and lots of evidence to the contrary, but all they need is a couple of friendly judges who simply rule that fraud is rampant and the risk of counting absentee ballots is too great, so they shouldn't be counted. All it will take is a couple of judges in Texas to get the case to the Supreme Court, where Justice Barrett could be worth her weight in gold in her first week on the job.

The top of Trump's legal tree is a 20-person team of lawyers from the top firms that will oversee the strategy related to the election process in 17 key states and will give the volunteer lawyers their marching orders. It is the largest election-year legal effort ever and there could be many court decisions during the week or more after Election Day affecting the count. Lawyers from noncompetitive states are being dispatched to competitive states and are being given cram courses in local election law.

The whole Republican effort got a negative review from Benjamin Ginsberg, who ran the Florida 2000 recount lawsuit operation for the Republicans. He wrote an op-ed in the Washington Post 2 weeks ago saying: "The president's words make his and the Republican Party's rhetoric look less like sincere concern—and more like transactional hypocrisy designed to provide an electoral advantage." Undoubtedly, many judges will take note of the fact that Trump's lawyers are planning all sorts of challenges before they even know if there's anything to challenge. They know what "bad faith" means.

The Biden campaign also has a massive legal team. It is being led by Dana Remus and Bob Bauer (yes, that one). He was White House general counsel once, after all, and knows a thing or two about lawyering. Also working for Biden are former solicitors general Donald Verrilli and Walter Dellinger, former AG Eric Holder, and Marc Elias, the Democrats' top election law expert. While the legal teams may be roughly comparable in size and knowledge of the election laws, in the end, it could come down to what the nine unelected justices think. And with Chief Justice John Roberts (who cares a lot about his reputation) about to lose his seat in the middle of the Court, it looks to be advantage Republicans. (V)

White Catholics in the Midwest Could Be a Key Demographic for Biden

Blue-collar workers in the Midwest are a demographic group that both parties are desperate to win, right up there with "suburban housewives." Biden may have a special edge there with one particular group: white Catholics. In Wisconsin, Catholics make up 34% of the population and in Pennsylvania 30%, both above the national average of 22%. Biden is Catholic and is trying hard to pick off white Catholics in those states by explaining how his policies align with the teachings of the Catholic Church, especially as relating to helping the poor.

Of course, the 800-pound gorilla in the church is abortion. For some Catholics, the election is all about abortion, but for many others, abortion is but one of many issues they are looking at. It is these multi-issue Catholics that Biden is targeting. A Pew study last year showed that 77% of Democratic-leaning Catholics think abortion should be legal, while 63% of Republican-leaning Catholics think it should be forbidden. Biden's plan is to maximize turnout among the first group.

Biden's advantage with white Catholics is that he goes to mass every Sunday. Trump is never seen in a church except when he is holding a rally outside one and it starts to rain. That could matter with some of them. Biden often talks about his Catholic upbringing and frequently cites scripture.

He recently started a "Catholics for Biden" group, something that Hillary Clinton didn't have 4 years ago. In addition to focusing on the "Midwest," it will also go after Latinos in Florida, Arizona, and other states. In close elections, even picking up a point here or there could matter. (V)

Biden Refuses to Take a Position on Expanding the Supreme Court

Joe Biden was asked by a reporter yesterday what he thinks about increasing the size of the Supreme Court. He refused to take the bait. Instead he said: "I know you're gonna be upset with my answer, but what I'm not gonna do is play the Trump game, which is a good game he plays—take your eye off the issue before us." Then he switched the subject to Trump's attempt to kill the ACA.

Keeping his powder dry is undoubtedly Biden's best tactic. If he were to say he will expand the Court, he would lose votes among moderates who don't like the idea. If he were to say it is off the table, progressives would be furious with him. By keeping mum, he keeps everyone off guard. If he wins, there is plenty of time to make a decision later. It is worth noting that in the past, he was against the idea. He might still be, we don't know, but he is keeping his options open.

This is certainly good politics. Saying he wants 11, 13, or 15 justices on the Court now, with no provocation, is just a bad idea. If he really wants more justices, he should wait for a particularly unpopular decision (like declaring the ACA to be unconstitutional) and then feign outrage. Then it would be much easier to rally public support for a bigger Court. Biden has been around the track a couple of times and understands that he would need public support for such a move and this is not the time for it. (V)

Absentee Ballot Requests Are Setting Records

Donald Trump's lawyers are scared to death about the absentee ballots favored by the Democrats for a good reason: There are going to be a lot of them. Already 28 million ballots have been requested, with another 43 million scheduled to be sent out automatically in the next couple of weeks. That means at least 71 million voters will have absentee ballots. That's a lot more than the 50 million absentee ballots cast in 2016.

In many key states, the number of ballot requests has already approached or even exceeded the total number of pre-Election Day votes cast in 2016, as follows:

In particular, in Arizona, Michigan, Pennsylvania, Wisconsin, and Minnesota, the number of 2020 ballot requests already has passed the total pre-Election Day votes in 2016, and in other states it could yet do so. In North Carolina, 1 million ballot requests have come in, vs. 85,000 requests at this point in 2016. About 49% of the requests this year have been from registered Democrats, even though only 36% of the state's voters are registered Democrats. In Florida, 46% of the requests are from Democrats, even though only 37% of the voters are registered as Democrats. Of course, Republicans could make up the gap on Election Day, but an already banked vote is a vote for sure, whereas someone planning to vote on Election Day might not due to the pandemic, the weather, or something else. (V)

Odds on Knowing Who the President-Elect Is on Nov. 3 Keep Dropping

It is as if judges don't want the election called Nov. 3. They keep making rulings that make that very unlikely, unless there is a landslide. Consider these rulings in key swing states:

• The Pennsylvania Supreme Court allowed ballots arriving up to Nov. 6 to be counted
• A Michigan judge permitted ballots arriving up to Nov. 17 to count
• A federal judge ordered Wisconsin to count ballots arriving by Nov. 9
• A settlement in North Carolina will allow ballots arriving before Nov. 12 to count

In all cases, ballots will only be counted if they are postmarked on or before Election Day. Barring a landslide with Biden sweeping Florida, Georgia, and Arizona by wide margins, it is hard to see how the election could be called with four key swing states representing 61 electoral votes not known. If we take these four states out of the picture from today's map above, then Biden has 275 solid EVs (outside the margin of error) and Trump has 120. That is a shaky basis for calling a winner.

If Biden is leading in most or all of these states on Election Night and multiple pollsters have said that the vast majority of absentee ballots are for Joe Biden, the networks might be willing to call the election for Biden, but even then, every on-air journalist will have visions of "DEWEY DEFEATS TRUMAN" running through his or her head. In addition to the above issues, new ones could pop up at any time up to Election Day and afterwards.

It is hard to tell which states will have a good count on Election Night, in part because we don't know how many absentee votes there will ultimately be and how long it will take to count them. Democrats are likely to soon start telling voters to vote early in person if they are healthy enough and feel safe doing so, and that could reduce the absentee vote (and speed up counting).

FiveThirtyEight produced this table showing possible swing states with some chance of being the tipping-point state that also accept ballots received after Election Day based on their simulations.

State	Tipping-point chance	Deadline	Accepts late ballots?
Pennsylvania *	33%	Nov. 6	Yes
Florida	12	Nov. 3	No
Wisconsin *	9	Nov. 9	Yes
Michigan	8	Nov. 17	Yes
Arizona	6	Nov. 3	No
North Carolina *	5	Nov. 12	Yes
Ohio	3	Nov. 13	Yes
Nevada	3	Nov. 10	Yes
Minnesota	3	Nov. 10	Yes
Colorado	3	Nov. 3	No
New Hampshire	2	Nov. 3	No
Georgia *	2	Nov. 6	Yes
Virginia	1	Nov. 6	Yes
Texas	1	Nov. 4	Yes

In states marked with an asterisk, things could yet change due to pending court appeals and rulings. Actually, that applies to all states this year. According to this model, there is at least a 50% chance that the tipping-point state (the one that will put one of the candidates over 270), won't be called until many days after Election Day.

One event that could change the calculus is a decisive win in Florida by Biden. Florida will not accept any votes after Election Day and also begins counting the absentee ballots weeks before. Therefore, Florida may have a close-to-final result on Election Night. If it is for Biden by a lot, that probably implies a Biden win in North Carolina and victory. If it is close or Trump wins big time, that doesn't say that much because Biden can afford to lose both Florida and North Carolina if he wins the three "Midwest" states, or two of them and Arizona.

If Trump wins Florida or it is close, the lawsuits will fly, as Trump tries to repeat 2000 and get the courts to let him stay at 1600 Pennsylvania Avenue. If he loses Florida, he doesn't have much hope and lawsuits probably won't help.

However, in late-breaking news on Sunday, a federal appeals court temporarily reversed the lower-court decision allowing late-arriving ballots in Wisconsin to be counted as late as Nov. 9. As it stands now, only ballots coming in before 8 p.m. on Election Day will count. However, a full appeals court ruling is expected in the coming days, undoubtedly followed by an appeal to the U.S. Supreme Court. (V)

Ransomware Attacks on the Election Are Increasing

Hackers, possibly from the Russian troll farm in St. Petersburg, are becoming active. One popular attack route is ransomware attacks on the voting infrastructure. For example, a hack could encrypt the poll book, which lists the registered voters and without which the election cannot take place. Imagine that the list of voters in Detroit were encrypted and a message sent to the election administrator that the decryption key is currently on sale for $20 million in bitcoins, but the sale ends in 24 hours. What now? Detroit doesn't have the money and Michigan probably doesn't either. But without the poll book for Detroit, Trump will easily win Michigan. Will the feds ride to the rescue? Maybe in Tallahassee but not in Detroit.

The attacks are not only on cities and counties, but also on private companies that sell election software and services. Case in point: Tyler Technologies, a firm that sells software that aggregates votes (e.g., from counties) and feeds the results higher up the food chain, was victimized this way last week. And this is only one of many ransomware attacks that have occurred recently. Officials can't be sure which ones are from criminals trying to make a quick megabuck or 10 and which ones are part of a GRU operation to disrupt the election.

And the Tyler attack is surely just the tip of the iceberg. It wasn't until 2019 that the FBI learned that Palm Beach County, FL, was hit by a ransomware attack just weeks before the 2016 election. The agency also noted that ransomware attacks have succeeded in Oregon and Louisiana recently.

The attacks are also getting more sophisticated over time, something that suggests GRU involvement rather than petty criminals. Not only are disks encrypted, but data is also being stolen and sold on the dark Web or to rogue nations. Ransomware attacks can be mitigated, for example by having backups of key databases made frequently and stored offline, but changing the software to do that would take months of planning by experts, then buying the necessary hardware and software and training personnel in their use. There is no way that can be done by November, but if the funds are available now, a decent system could be in place by 2022. (V)

Today's Presidential Polls

Joe Biden is still maintaining a substantial lead in the key states of Michigan, Wisconsin, and Pennsylvania. However, if voters there send their ballots in too late to make it by Election Day, they might not be counted if the Supreme Court blocks counting ballots arriving after Nov. 3. North Carolina and Georgia are still squeakers.

State	Biden	Trump	Start	End	Pollster
California	62%	28%	Sep 19	Sep 21	Redfield and Wilton Strategies
Georgia	46%	47%	Sep 22	Sep 25	YouGov
Michigan	52%	44%	Sep 19	Sep 23	Marist Coll.
North Carolina	48%	46%	Sep 22	Sep 25	YouGov
Pennsylvania	50%	45%	Sep 24	Sep 26	TIPP
South Carolina	42%	52%	Sep 22	Sep 25	YouGov
Wisconsin	54%	44%	Sep 20	Sep 24	Marist Coll.

Today's Senate Polls

Sen. David Perdue (R-GA) has opened a substantial lead over Jon Ossoff in Georgia. And somehow, Jaime Harrison is still in the game in South Carolina. Michigan and North Carolina look like lost causes for the GOP.

State	Democrat	D %	Republican	R %	Start	End	Pollster
Georgia	Jon Ossoff	42%	David Perdue*	47%	Sep 22	Sep 25	YouGov
Michigan	Gary Peters*	49%	John James	44%	Sep 19	Sep 23	Marist Coll.
North Carolina	Cal Cunningham	48%	Thom Tillis*	38%	Sep 22	Sep 25	YouGov
South Carolina	Jaime Harrison	44%	Lindsey Graham*	45%	Sep 22	Sep 25	YouGov

* Denotes incumbent

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