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The Trump Full-Court Press Has Commenced...

Everyone knows that Donald Trump and his minions will do anything to secure his reelection. And just in case anyone didn't know it, Trump & Co. have been broadcasting their intentions loud and clear, so everyone knows the score.

Let's start with the President. On Wednesday, he was asked whether he would commit to a peaceful transfer of power if defeated in November's election. His answer, equal parts rambling and frightening, was:

Well, we're going to have to see what happens. You know that I've been complaining very strongly about the [mail-in] ballots and the ballots are a disaster. Get rid of the ballots and you'll have a very peaceful—there won't be a transfer, frankly. There will be a continuation.

Trump's message—and this isn't the first time he's said this, in one way or another—could not be clearer:

  1. If Joe Biden wins, it will be due to his substantial advantage in mail-in ballots
  2. Mail-in ballots are fraudulent
  3. Ipso facto, a Joe Biden victory is inherently fraudulent

The first part is absolutely true, but the second part is utterly unsubstantiated by evidence, which makes the conclusion invalid. Of course, Trump's base does not care about evidence, and in making this argument, the President is all but instructing them to turn violent if Biden wins.

Trump's underlings, meanwhile, are doing everything they can to help advance his agenda. In two different items yesterday, we talked about the multiple hundreds of lawsuits that pro-Trump forces have filed, generally with the purpose of limiting mail-in voting or else generally creating an air of chaos and uncertainty (and thus illegitimacy).

Attorney General Bill Barr, who we are increasingly reluctant to call by that title since he's not actually doing the job of an attorney general, took things to a new propagandistic extreme on Thursday when his department issued a press release advising that nine military ballots, all of them marked for Donald Trump, had been found discarded in a northeastern Pennsylvania county. The press release did not specify exactly where they had been found, nor under what circumstances, nor what "discarded" actually means, nor how their authenticity had been validated. Whoever wrote the release also overshot a bit, apparently, since it was later amended to say that only seven of the ballots were for Trump, while the other two were sealed. Naturally, the DoJ has promised an investigation.

The whole press release, of course, stinks to high heaven. As many former DoJ employees pointed out after Team Barr made the announcement, it is wildly inappropriate to comment on an ongoing investigation, it is even more inappropriate to do it with half-facts and unsubstantiated assertions, and it is more inappropriate still to include the (alleged) candidates' names, since the names don't matter. If there's a crime here, it's a crime regardless of whose names are marked on the ballots. And then there's the small matter that this looks custom-crafted to give Trump and his allies a talking point (note that the ballots were "found" in swing-state Pennsylvania, and not Hawaii or Oregon or Vermont). And indeed, the President has already picked it up and started running with it, as have his adoring fans on Fox News. They, of course, do not care that even if everything here is on the up-and-up, and the ballots really were discarded illegally, 9 ballots out of the 140 million or so expected to be cast is .000006%, and so—in and of themselves—the 9 ballots prove absolutely nothing.

So, that is Trump and his minions. What about his enablers, namely the Republicans in Congress who don't actively aid him in his shenanigans, but don't do much to get in the way, either? Well, on Wednesday, nearly all of them tried to dismiss the President's refusal to commit to a peaceful transition of power as much ado about nothing. By Thursday, some of them had apparently awakened to the fact that undermining faith in elections might not be a good thing for folks who are in the business of getting elected, and so they pushed back, albeit with the force of a gentle spring breeze.

Sen. Mitt Romney (R-UT), who surely has the money to offer a reward to anyone who finds and returns his spine, said "There's no question ... that all the people who had sworn to support the Constitution would assure that there would be a peaceful transition of power." Sen. John Thune (R-SD) remarked that "Republicans believe in the rule of law and we believe in the Constitution." The careful reader will note that they did not criticize the President at all, and that they also said nothing about what they might do if Trump refused to obey the rule of law. Consequently, this is no different from expressing "concern," as Sen. Susan Collins (R-ME) is so fond of doing. And we know how much follow-up there tends to be from Republicans in Congress after they have expressed their "concern" over something Trump did. (Z)

...But Will It Work?

In view of Donald Trump's healthy disrespect for, well, pretty much everything, and in view of his congressional colleagues' unwillingness to hold him accountable, there are a lot of people who are justly nervous about November's election. This has created quite the appetite for "Here's how Trump could steal the election" articles, a demand that the punditry has been happy to supply.

The article that is getting all the attention this week is from The Atlantic. It's written by Barton Gellman, is headlined "The Election That Could Break America" and is pretty much a laundry list of the various rackets Trump is running, or is trying to run, or might try to run. We are not entirely sure what The Atlantic's purpose is here. An editor's note suggests that they are motivated by a sense of public service, and that they published the article early "because of its urgency." Maybe so, although the magazine published nearly the same article back in March, authored by Jeffrey Davis and under the headline "How Donald Trump Could Steal the Election."

We have addressed many of the concerns that Davis and Gellman raise, and have been dismissive of most. However, Gellman builds a substantial part of his article around a semi-new concern, one that has gotten particular attention since The Atlantic posted his piece, and one that we would like to address. The general idea is that Team Trump will use the courts (or anything else at their disposal) to throw a wrench into the works, dragging things out, and affording state legislatures the necessary cover to announce that they will just award their state's electoral votes by themselves, as the Constitution empowers them to do. In the worst case scenario, it could be a repeat of the Election of 1876, when many states submitted two different slates of electors, leaving Congress to figure out which slate to accept.

Let us begin our examination with the second adaptation this week of our Tipping-Point Chart (as it stood on Thursday). The states are listed in order of Joe Biden's lead, from safest to least safe. The latter three columns cover the partisan identity of the state/district's legislature, the state secretary of state, and the state/district's chief executive:

State/District EVs Biden Lead Running EV Total Legislature SoS Executive
D.C. 3 89% 3 Democratic None Democratic
Massachusetts 11 38% 14 Democratic Democratic Republican
Hawaii 4 37% 18 Democratic None Democratic
New York 29 31% 47 Democratic Democratic Democratic
California 55 29% 102 Democratic Democratic Democratic
Vermont 3 24% 105 Democratic Democratic Republican
Maryland 10 24% 115 Democratic Republican Republican
Washington 12 22% 127 Democratic Republican Democratic
Delaware 3 21% 130 Democratic Democratic Democratic
Connecticut 7 20% 137 Democratic Democratic Democratic
New Jersey 14 18% 151 Democratic Democratic Democratic
Maine 4 17% 155 Democratic Democratic Democratic
Illinois 20 16% 175 Democratic Democratic Democratic
Rhode Island 4 15% 179 Democratic Democratic Democratic
New Mexico 5 15% 184 Democratic Democratic Democratic
Virginia 13 14% 197 Democratic Democratic Democratic
Oregon 7 12% 204 Democratic Republican Democratic
Colorado 9 10% 213 Democratic Democratic Democratic
Minnesota 10 9% 223 Divided Democratic Democratic
Michigan 16 8% 239 Republican Democratic Democratic
Wisconsin 10 7% 249 Republican Democratic Democratic
Pennsylvania 20 5% 269 Republican Democratic Democratic
Nevada 6 4% 275 Democratic Republican Democratic
New Hampshire 4 3% 279 Democratic Democratic Republican
Arizona 11 3% 290 Republican Democratic Republican
North Carolina 15 1% 305 Republican Democratic Democratic

And now, let us point out two giant problems with the "two slates of electors" notion, one at either end of the process. The first problem is that in all 50 states and D.C., current law dictates that electoral votes be awarded based on the vote of the citizens. Even if one of the four GOP legislatures on this list wanted to award the state's EVs by fiat, they couldn't do it without changing the law. And that would require a gubernatorial signature (or a veto override, and there are no states on the list above where Republicans have a veto-proof state Senate majority).

The second problem, on the other end of the process, is that while there was once a time when multiple slates of electors were possible (e.g., 1876), that time has passed. Federal law, specifically 3 U.S. Code 6, makes very clear that:

It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors...

In other words, a valid certificate of ascertainment, and a valid slate of electors, can only come from the governor of a state.

We've pointed out before that existing case law suggests that once a legislature has delegated the right of choosing electors to the people, it cannot take it back unless it formally repeals the election law. There is also existing case law that says the rules of an election cannot be changed after an election has taken place. But even if everyone (state legislatures, courts, etc.) is conveniently willing to overlook these things, the two issues we outline above mean there is simply no way for a state legislature to award that state's electoral votes without buy-in from the governor. You will notice that only one state on the chart above has the Republican legislature-Republican governor pairing needed to do that, namely Arizona. There are other states that are not on the chart where it's also possible, of course, like Texas and Ohio. But the point is that if Biden wins the states he's currently expected to win (even if North Carolina slips away), then he's still got 279 EVs protected by a Democratic legislature, or a Democratic governor, or both.

Let us also point out that the two points we've raised about gubernatorial authority are the most serious legal problems that these sorts of schemes would run into, but they are not the only problems. In fact, there are many others if you really get into the weeds. To take just one of them, Article II of the Constitution instructs that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." That verbiage implies that legislatures cannot act on their own, and that their "state" must be given input into the process (whether that means the rest of the government, or the citizenry, or either of these, or both, has not been explored by the courts).

Moving on, you will note that we've also included the secretaries of state in the chart. We did that for two reasons. First of all, it is at least theoretically possible that a rogue SoS and a rogue governor could scheme to steal a state's EVs, though that would require substantial corruption and substantial lawbreaking. And you will notice that there is only one state on the chart that has the necessary combo, namely Maryland. We do not believe that Gov. Larry Hogan (R-MD) or Maryland Secretary of State John C. Wobensmith (R) are even in the same ZIP code as that kind of corruption, especially since they both disdain Trump. And even if they do decide to play ball with the President and Arizona conspires to deprive their citizens of the vote and North Carolina slips away, Biden still has 269 EVs. That's a tie, and if he holds the one sometimes-rogue EV in Maine, and claims the one in Nebraska (and again, he's leading in polling in both districts), he is elected president.

The second reason we've mentioned the Secretaries of State is that it should be clear that, in all but four of these states/districts, Democratic secretaries of state (and, in the case of Washington D.C. and Hawaii, Democratic executives, who are vested with final authority) are going to fight tooth and nail to keep their state's election from being stolen by legal or other trickery. They will file countersuits, they will talk to The New York Times and "Meet the Press" about the true results in their states, they will hustle to get the votes counted in a timely manner. We have no particular reason to believe the secretaries of state of Maryland, Washington, Oregon, and/or Nevada are in the bag for Trump, particularly if they are interested in being reelected. But even if all four are, the states where Democratic officeholders have control over the counting of ballots still have 280 EVs among them.

In short, this business of state legislatures stepping in and stealing the election simply does not add up. The mathematical hurdles are large, and the legal hurdles are even larger. This is not to say that Trump & Co. cannot steal the election; it's certainly possible. However, we once again return to an observation we've made before: The plausible shenanigans for stealing the election all involve things that would happen before the election. In other words, things like limits on absentee voting, USPS chicanery, Russian malfeasance, voter ID laws, flyers in poor areas saying the election has been postponed until Nov. 10, and things like that. The post-election schemes that have been put forward—legislatures stealing EVs, Team Trump somehow throwing the election to the House, Trump refusing to leave the White House, etc. are implausible.

Let us conclude by also pointing out some factors that are lurking beneath the surface, and that aren't getting much attention, but that may make it significantly harder than Team Trump thinks to get away with their antics:

This whole analysis, of course, depends on Joe Biden winning most or all of the states the polls say he's supposed to win. And we say again, it is certainly possible that Trump & Co. could actually pull off some of their plans and schemes. But we think it's also important to point out just how difficult it will be to deprive Biden of enough wins to steal the presidency, if the Democratic nominee is entitled to those wins. (Z)

Deep in the Heart of Texas

Texas is one of those states that has a Republican governor, secretary of state, and legislature. So, in contrast to the states listed in the chart above, we can't promise there will be no funny business on (or after) Election Day. That said, the purpler a state is (and the Lone Star State is trending that way), the riskier it is for someone who wants to keep their job to play games.

One person who has faith the election will be on the up-and-up, and that the state is winnable for Joe Biden, is Beto O'Rourke. Residents of 49 states weren't buying what he was selling, but Texans apparently still love him. And so, he's hit the campaign trail for Joe Biden with gusto, backed by 6,000 volunteers and the phone/e-mail list he gathered during his campaign for the U.S. Senate. O'Rourke's been focusing in particular on Latino voters along the Rio Grande, which he sees as a real growth opportunity for the Biden-Harris ticket.

As we have pointed out several times, recent polls of Texas have it shockingly close. Donald Trump is usually "up," but within the margin of error. The fact that the Republican Party has recently sent a bunch of money to the state is also instructive. If Biden does win, or makes it close, he may have Beto, or demographic change, or the economy, or COVID-19, or dislike for Trump, or all of the above to thank. We're not sure what O'Rourke wants in exchange for his labors, but we will note that the last two Secretaries of Energy both came from Texas (though both were surprised to learn that they were primarily responsible for keeping an eye on nuclear energy, and not oil). (Z)

Biden Picks Up Some More High-Profile Endorsements

On Thursday, "489 retired Generals, Admirals, Senior Noncommissioned Officers, Ambassadors and Senior Civilian National Security Officials" who are calling themselves "National Security Leaders for Biden" published an open letter announcing their support for, and their endorsement of, the Democratic candidate. The missive is mostly an accounting of the things the signatories like about Biden, but it also finds time to take Donald Trump down a few pegs:

The current President has demonstrated he is not equal to the enormous responsibilities of his office; he cannot rise to meet challenges large or small. Thanks to his disdainful attitude and his failures, our allies no longer trust or respect us, and our enemies no longer fear us. Climate change continues unabated, as does North Korea's nuclear program. The president has ceded influence to a Russian adversary who puts bounties on the heads of American military personnel, and his trade war against China has only harmed America's farmers and manufacturers. The next president will have to address those challenges while struggling with an economy in a deep recession and a pandemic that has already claimed more than 200,000 of our fellow citizens. America, with 4% of the world's population suffers with 25% of the world's COVID-19 cases. Only FDR and Abraham Lincoln came into office facing more monumental crises than the next president.

Usually, Trump quite likes to be included in the same paragraph with Abe Lincoln. But not so much, in this case.

Generally speaking, we are somewhat dismissive of the value of endorsements in the highly polarized political environment that exists today. And we doubt that too many civilians will take notice of this open letter. But, as we have noted, military personnel (and veterans) talk to one another and they also tend to have high regard for the views of others who served. Among the folks who signed the letter were former vice chairman of the Joint Chiefs of Staff Gen. Paul Selva (ret.) and former head of the Coast Guard Adm. Paul Zukunft (ret.). We think it's possible that this will give pause to at least a few folks in the military community. (Z)

Barbara Lagoa May Have Violated Ethics Rules

There is a battle going on within the administration about whom Donald Trump should nominate to the Supreme Court vacancy created by the death of Ruth Bader Ginsburg. The "idealists" want Amy Comey Barrett, a life-long dedicated conservative who has been groomed for years for a Court seat. The "realists" want Barbara Lagoa, a Florida Latina who is currently a federal appeals court judge in Atlanta but who was formerly on the Florida Supreme Court. Both are devout Catholics, so that isn't a factor.

However, an article today in the Washington Post brings up an old controversy that may sink Lagoa and tip the scales to Barrett. When Lagoa was interviewed by the Senate during her confirmation hearing for the federal bench, she talked about ethics and how important it was for a judge to recuse herself from any case where she might have a conflict of interest. Beautiful words, but they don't match her subsequent actions.

When she was on the Florida Supreme Court, she heard a case that originated in the 2018 Amendment 4, in which Florida voters overwhelmingly gave most former felons the right to vote after they had served their time. The Republican-controlled state legislature didn't like that and quickly passed a law requiring felons to pay all fines and fees before being reenfranchised. When the resulting lawsuit made its way to the Florida Supreme Court, she actively and repeatedly challenged the lawyers for the felons. That's fine. Judges are expected to challenge lawyers for both sides during oral arguments.

When the case later came up for an en banc ruling at the U.S. Court for Appeals for the 11th Circuit—on which she now sat—there were calls for her to recuse herself. She and another Trump apointee, Rubert Luck, refused to do so on the (shaky) grounds that the federal case was different from the state case (which it was not). Those two judges were the deciding votes in the 6-4 decision reversing the lower court and effectively disenfranchising most of the 85,000 felons who registered to vote in Florida based on the lower court decision.

Lagoa's involvement in the appeals decision caused some senators on the Judiciary Committee to write to her before the ruling asking her to honor the pledge she had given them to recuse herself from a case in which she was not only involved earlier (which is standard operating procedure in the courts) but in which she had been a strong supporter of one side. She and Luck wrote a 25-page memo giving a highly technical reason why it was all right for her to violate the spirit of the court's ethical rules. Lawyers for the ACLU, which brought the original case, said "involvement is involvement."

And there is potentially more. Lagoa is married to attorney Paul Huck Jr., who works for Jones Day, a law firm that has long represented the Trump campaign. As a Supreme Court justice, she would very likely get to rule on cases in which her husband's firm represented one of the parties. Given her history of finding narrow technical reasons to avoid recusing herself, should she be the nominee, senators would undoubtedly want an ironclad promise to recuse herself from any case in which Jones Day was involved. If she were to try to weasel out of an answer, that could become an issue in her confirmation. If she were to state point blank: "I will recuse myself from any case in which Jones Day represents one of the parties," Senate Republicans would no doubt be satisfied. But what would happen if a case came up and Jones Day temporarily "lent" some of its lawyers to a (subsidiary) law firm so that the name "Jones Day" was not listed for either party? Would Lagoa then have to recuse herself? If she didn't, could the House later impeach her for lying to Congress or could she successfully defend herself by saying "Jones Day" was not the attorney of record for either party?

Two days before Ginsburg died, the South Florida Sun Sentinel published an editorial under the headline: "Court allows rich felons to vote in Florida, but not the poor," in which it excoriated Lagoa for taking part in the 11th Circuit decision because she was so hostile to the felons when she heard the case on the Florida Supreme Court. If she is the nominee to the Supreme Court, expect one of the Democrats to bring the paper to the hearing and ask her about it.

Our take is that this weakens her case considerably and greatly increases the odds of Barrett being the new justice. (V)

About That Violence in the Streets...

Donald Trump has long made hay out of his claims that teeming hordes of (mostly brown) people are coming to get innocent, law-abiding white Americans, particularly those in the suburbs. His announcement of his presidential campaign focused on undocumented Mexican immigrants. He spent months back in 2017 and 2018 railing against those same immigrants, particularly "immigrant caravans" and alleged MS-13 members. He warned against people from "sh**hole" countries and sanctuary cities. And, more recently, it's been Black Lives Matter and Antifa.

As it turns out, Trump was right to warn that there's been a significant uptick in organized, violent groups recently. He just had the wrong ones. According to a new report from The Guardian (UK), there was a significant effort by white, pro-Trump supporters to organize and arm themselves so that they could raise hell in Portland, OR, perhaps even assassinating a few Democratic political leaders.

Meanwhile, a couple of thousand miles away, four plaintiffs filed suit in Wisconsin on Thursday due to harm done them by white, pro-Trump supporters. Their claim targets Kyle Rittenhouse, who killed two people, militia groups like the "Kenosha Guard" and "Boogaloo Bois," and Facebook for facilitating these individuals' violent activities.

We do not know if these sorts of news stories will reach the "suburban housewives" that Trump is trying to frighten and win over to his side. We do know that suburbanites, and in particular suburban women, do not appear to be buying his fearmongering. They may not feel a need to be protected, or they may know that Trump is no more able to deliver on this promise than on his promise of building a border wall, or they may recognize that he foments more violence than he prevents (and by a large margin, it appears). (Z)

Unsurprisingly, There Will Be No "October Surprise" from Ron Johnson

Sen. Ron Johnson (R-WI), who is one of the folks who probably aren't faking their crush on Donald Trump, announced many months ago that he was going to get to the bottom of this Hunter Biden/Burisma business in his capacity as chair of the Senate Committee on Homeland Security. The Senator acknowledged that his investigation certainly had the potential to help the President's reelection campaign, but you gotta do what you gotta do, ideally making sure to release your conclusions in October.

On Wednesday, Johnson announced that his report will be released in October, as planned. Then, in his quiet voice, he conceded that there are no "massive smoking guns" and that he hadn't found any dirt implicating Joe Biden in wrongdoing. The Senator also said it was "a misconception on the part of the public that there would be [dirt/massive smoking guns]," which will certainly teach the voting public not to get their information from...Ron Johnson. Anyhow, it means that one possible October Surprise has already turned back into a pumpkin. (Z)

Today's Presidential Polls

The polls are coming fast and furious these days. The best news for Donald Trump is that both polls of Texas have him up, one of them by a fair margin. The best news for Joe Biden is that both polls of Ohio have him up, one by the exact same fair margin. Of course, Texas is a must-have for Trump, while Ohio is just the cherry on the sundae for Biden. (Z)

State Biden Trump Start End Pollster
Georgia 45% 45% Sep 16 Sep 21 Siena Coll.
Iowa 45% 42% Sep 16 Sep 22 Siena Coll.
Iowa 46% 49% Sep 18 Sep 22 Monmouth U.
Michigan 51% 45% Sep 10 Sep 21 YouGov
Nevada 52% 41% Sep 20 Sep 23 Fox News
Ohio 48% 47% Sep 17 Sep 21 Quinnipiac U.
Ohio 50% 45% Sep 20 Sep 23 Fox News
Pennsylvania 49% 45% Sep 10 Sep 21 YouGov
Pennsylvania 51% 44% Sep 20 Sep 23 Fox News
Texas 43% 46% Sep 16 Sep 22 Siena Coll.
Texas 45% 50% Sep 17 Sep 21 Quinnipiac U.
Virginia 48% 43% Sep 09 Sep 21 Christopher Newport U.
Wisconsin 50% 46% Sep 10 Sep 21 YouGov

Today's Senate Polls

Senate Minority Leader Chuck Schumer (D-NY) has to like most of what he's seeing these days. In particular, that's four polls in the last five (and eight of the last ten) where Theresa Greenfield is up in Iowa. On the other hand, Jon Ossoff is not doing so well in Georgia. (Z)

State Democrat D % Republican R % Start End Pollster
Georgia Jon Ossoff 38% David Perdue* 41% Sep 16 Sep 21 Siena Coll.
Iowa Theresa Greenfield 42% Joni Ernst* 40% Sep 16 Sep 22 Siena Coll.
Iowa Theresa Greenfield 49% Joni Ernst* 46% Sep 18 Sep 22 Monmouth U.
Texas Mary "MJ" Hegar 37% John Cornyn* 43% Sep 16 Sep 22 Siena Coll.
Texas Mary "MJ" Hegar 42% John Cornyn* 50% Sep 17 Sep 21 Quinnipiac U.
Virginia Mark Warner* 52% Daniel Gade 39% Sep 09 Sep 21 Christopher Newport U.

* Denotes incumbent


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