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Florida, New York, and Oklahoma Will Hold Elections Tomorrow

Last week, we had two low-population states, Wyoming and Alaska, hold primaries. Tomorrow we have two high-population states, Florida and New York, along with a medium-population state, Oklahoma. High population means lots of House districts and lots of action in some of them. Let's take a look.

So we have many things to look for on Tuesday night. There are no elections next week, though on Sept. 6 we get Massachusetts, then on Sept. 13 it is Delaware, New Hampshire, and Rhode Island. That's it, until Nov. 8, when Louisiana has its jungle primary and all the other states have their general elections. (V)

Another Election to Watch Tuesday

There is another election in New York state tomorrow that we didn't include above because it is not a primary. However, it's worth a mention because it could be a bellwether for November. In a move that could only be described as stupid beyond all belief, Gov. Kathy Hochul (D-NY) picked former Rep. Antonio Delgado (D) as the lieutenant governor of New York. Note that there is nothing wrong with Delgado. He is an honest man, a good politician, and perfectly capable of fulfilling the duties of the lieutenant governor.

The problem is that of the hundreds of Democratic politicians in the state, including 106 Democrats in the state Assembly, 63 Democrats in the state Senate, 18 Democrats in the U.S. House, and many Democratic mayors and county executives, she picked a Democrat who, through hard work and great skill, managed to pick up a U.S. House seat in a Republican-leaning district. Thus, in one fell swoop, she turned a seat that would probably have gone blue again into a toss-up, at best. If she had picked, say, the speaker or majority leader of the state Assembly or the majority leader of the state Senate—people who already are very familiar with Albany politics—she wouldn't have risked a House seat in an election when every one of them could be crucial. Delgado is Black and Latino and Hochul probably specifically picked him to appeal to both groups. Still, risking a precious House seat is a high price to pay.

Be that as it may, the special (general) election for Delgado's seat is tomorrow and could give us a preview of what is in store for November. For Democrats, it could show that Joe Biden's recent legislative wins and abortion are enough to carry the day. For Republicans, it could show that nothing has changed and the originally predicted red wave is on schedule. An open seat in an R+3 district makes a good test case. The only thing that might ruin the predictive value of the special election is very low turnout because many voters are on vacation, but after the votes have been counted, we'll known how many there were.

The contestants are Army veteran and Ulster County Executive Pat Ryan (D) and Dutchess County Executive Marc Molinaro (R). Ryan has campaigned on making abortion legal everywhere. Molinaro sees the race as a referendum on the Biden administration. That's probably what November has in store as well. Ryan said: "Think about the message sent in Kansas, think about the message we can send right here." Meanwhile, Molinaro was further north campaigning with Rep. Elise Stefanik (R-NY) and talking to farmers about how the economy is choking their businesses. He also basically told Ryan that he (Ryan) had no business picking the issues for the campaign when he (Molinaro) had already decided it was the economy. Molinaro has said nary a word about abortion and doesn't like it one bit when Ryan talks endlessly about it.

Due to redistricting, both Ryan and Molinaro might end up in Congress on Jan. 4. That is because in addition to running in the same district in the special election (with the boundaries set in 2010), both are running for regular House seats for the term starting Jan. 3, 2023, but in adjacent districts. If they both win the regular elections, they may be neighbors but definitely not buddies. (V)

Merrick Garland Has Some Tough Calls to Make

Jennifer Rubin, has a column that lists the many ongoing investigations relating to Donald Trump. There are so many it is hard to keep track of them, but here is a list:

The first six are definitely on Garland's plate and he has to decide how much of his limited resources go into each one. The last two are not directly on his plate, but do impact what he is doing. Among other decisions he has to make and make soon are these:

Garland is now probably thinking: I had a wonderful job on the D.C. Court of Appeals. Why did I give it up for this mess?

Damon Linker, in The New York Times, presents an alternative view to Rubin's. He writes that if Trump is indicted and convicted, he will run claiming this is evidence of how corrupt the swamp is and how badly it needs to be drained. This might even get him new voters. It might also establish the precedent that each incoming administration promptly indicts the previous president. Linker argues that the best course is not to indict Trump but to crush him at the ballot box in 2024 by a margin so large that no one will believe the election was rigged.

We pass along Linker's take, but we're not exactly impressed by it. Just because Republicans have tended to weaponize the legal system over the past 20 years does not mean they can actually start indicting former Democratic presidents willy-nilly. There has to be an actual, you know, crime to charge. Recall how very badly Team Trump wanted to pop Hillary Clinton. And yet, what happened? Further, if the only risk to a lawbreaking president is that they might be punished at the ballot box, it would effectively affirm that the President of the United States is, indeed, above the law. Finally, the nature of American politics right now is such that nearly any presidential election will be close. And so, the "sunshine and rainbows" ideal outcome that Linker proposes is very, very unlikely. (V)

Democrats Are Worrying about a Cheney Presidential Run

At the moment, Liz Cheney is the Democrats' new best friend. But they are also starting to worry about her future plans. If she ran against Trump in the primary in 2024, that would be fine with them. It could pull votes away from him and make him look weak and give Republican voters who are sick of him a way to protest safely. After all, Cheney is a rock-ribbed conservative Republican. The Democrats' fear, however, is that she won't run in the Republican primary but will run as an independent in the general election, à la George Wallace in 1968, John Anderson in 1980, and Ross Perot in 1992.

If she runs as an independent in the general election, she would first have to get on the ballot by petition in many states, which is very difficult. Alternatively, she could seek the nomination of a third party, most likely the Libertarians, who are already on the ballot in many states. Either way, the danger for the Democrats is that there are dyed-in-the-wool Republicans who really dislike the Democrats but think Trump is a danger to the country and in 2020 held their noses and voted for Biden. With Cheney on the ballot, these people could vote for her to show their dislike of both Trump and the Democrats. Absent her, they would hold their noses against and vote for the Democrat. So Cheney could suck votes from both parties. That is their fear.

Cheney is smart enough to understand this as well, but she could guess wrong about how many of the votes she gets would otherwise have grudgingly gone to the Democrat. Of course, she could commission polls to ask people to give their choice in a Trump-Biden-Cheney race and also in a just Trump-Biden race, but 2 years in advance such a poll is virtually meaningless. And her gut feeling could be wrong.

Another strategy for her would not to actually run, but to raise money to oppose Trump and candidates who support him. She could use the money to run anti-Trump ads herself or join Sarah Longwell's Republican Accountability Project, which is already doing that. But politicians have big egos and Democrats can't be sure Cheney will do something like that rather than actually run. So they do what Democrats do so well: They worry. (V)

A Redacted Affidavit Will Enrage Trump's Supporters

Republicans are demanding that the affidavit that led to the Mar-a-Lago search warrant be made public. They probably should be careful because whatever was in it was enough to convince a federal judge to issue the search warrant. The Dept. of Justice doesn't want it released because not only might it expose the tipsters, it could also give Trump valuable knowledge about what the Dept. already knows. The judge tried to make a compromise by telling the DoJ to redact the affidavit and show it to him for editing and possible approval.

Assuming some version of the affidavit is released, it is certain to enrage Trump's supporters due to the redactions. They will say that the blacked out portions obviously contain exculpatory material, that's why they were redacted.

The back-and-forth over redaction will be between the DoJ and the judge. Trump will not be part of the process. The DoJ will be arguing that it has to protect its sources. The judge, who has the unredacted version, will have to, well, judge if that is true. Since there have already been threats against the judge, it may not take a lot of convince him that anything that could give away the identity of the sources could be a threat to their lives. And it's not just their names that are sensitive. If the affidavit says: "Mary Smith saw a document lying on Trump's desk stamped "Top Secret," then even if the name is blacked out, Trump immediately knows it was someone who had been near his desk at least once. That is a huge hint.

If a large portion of the affidavit is censored, Trump will start bellowing that the judge is part of the cover-up and that the whole release is a sham. What Trump wants is to know the names of the sources so he can eject them from his inner circle and exact revenge on them. The DoJ wants to avoid this at all costs, lest no potential future witness come forward. The judge understands this and might go along with heavy redactions, but then Trump and his supporters will claim it is a cover-up.

Trump probably realizes that the judge will never release a full unredacted version of the affidavit, so he has begun demanding that the DoJ release the whole, unredacted document. When it refuses, he will be able to claim it is hiding all the material that exonerates him. The only danger here is that if there is a paragraph that says something like: "The source listed in Sec. 4 has sworn under oath that Trump had documents that revealed how U.S. nuclear weapons worked. The source further said that if Trump is informed that he is a target, he could tell the DoJ that if he is indicted he will sell the documents to Saudi Arabia for billions of dollars." Maybe there is nothing like that in the affidavit, so Trump is not worried. But remember, whatever is in there did convince a federal judge to approve the warrant, so there has to be something serious in there. Maybe Trump is just bluffing. It wouldn't be the first time. He used to own a bunch of (long-since-bankrupt) casinos, so he knows a little about playing high-stakes poker.

The fundamental problem is that Trump and his supporters are not interested in the slightest why the judge issued the search warrant. They are convinced that Trump is innocent, the deep state is out to get him, and no amount of "evidence" will change their opinion. So a redacted (or even an unredacted affidavit) will have absolutely no effect on them. The DoJ is best off just telling the judge that it should not be released—period—which is exactly what it is doing. (V)

McConnell: House Flip More Likely Than Senate Flip

Senate Majority Leader Mitch McConnell (R-KY) has spoken and Republicans aren't going to like what he said. His words were: "I think there's probably a greater likelihood the House flips than the Senate. Senate races are just different—they're statewide, candidate quality has a lot to do with the outcome." That's turtle-speak for: "The candidates Trump saddled us with really suck and they're going to lose. As a result, we won't capture the Senate."

Donald Trump apparently got wind of that remark and was not amused. On Truth Social he wrote: "Why do Republicans Senators allow a broken down hack politician, Mitch McConnell, to openly disparage hard working Republican candidates for the United States Senate?" Picking a fight with the highest-ranking Republican in the country is probably not a good idea. Just to name one thing, if Ron DeSantis were to decide to challenge Trump in 2024 and McConnell felt that DeSantis was a stronger general-election candidate than Trump, he could instruct all the members of his caucus to loudly endorse DeSantis, saying that he is a proven winner and Trump is a proven loser. That could potentially help DeSantis in the primaries with Republicans whose main concern was beating the Democratic candidate.

Much earlier this year, McConnell was much more optimistic, expecting the Republicans to win both the House and the Senate, but that was before the primaries in Arizona, Georgia, Ohio, and Pennsylvania produced inexperienced, out-of-touch, low-quality candidates who are in way over their heads. Money can fix some things, but it is hard to fix stupid. By saying this now, McConnell is trying to lower expectations so the faithful won't be hugely disappointed if the Democrats end up with 51 or 52 seats.

Despite his "Truths" to the contrary, even Donald Trump is beginning to see the problem now. Rolling Stone is reporting that Trump has privately told his associates about Mehmet Oz: "He's going to f**king lose unless something drastically changes." Trump has seen the polls, some of which have Oz behind Lt. Gov. John Fetterman (D-PA) by double digits. He has asked his staff if the polls are phony or skewed and they have told him that the polls are accurate and that there are major problems with the candidate.

What Trump hasn't quite internalized yet is that picking candidates because they tell him they believe he won in 2020 doesn't usually result in the best candidates. And in the case of Oz, he not only is a dreadful candidate with absolutely no charisma or stage presence, but he lives in New Jersey, a state many Pennsylvanians don't especially like. And he has the misfortune of being up against an extremely gifted politician in Fetterman. If Rep. Conor Lamb (D-PA) had won the Democratic primary, Oz might be in better shape, but the Democrats picked their strongest candidate and the Republicans picked their weakest candidate. (V)

Federal Appeals Court Wants Key Memo about the Mueller Report Released

After he got a confidential copy of the Mueller Report, then-Attorney General Bill Barr asked the DoJ's Office of Legal Counsel to give him legal advice about what to do with it. Shortly thereafter, Barr wrote a letter to Congress stating that the report did not show evidence that Trump had obstructed justice.

A government watchdog group, CREW, wants to see the unredacted memo and filed a Freedom of Information Act request to get it. The DoJ released a very heavily redacted version of it. In May 2021, D.C. District Judge Amy Berman Jackson told the DoJ to release the unredacted memo. In a withering 41-page ruling, she accused Barr and his lawyers of pretending that they were open-minded about possibly indicting Trump when in fact they never even considered that option. Her decision was appealed. On Friday, the U.S. Court of Appeals for D.C. sustained Jackson's ruling, 3 to 0.

Now AG Merrick Garland has to decide whether to further appeal this decision. It is not that Garland is afraid of embarrassing Barr and showing that indicting Trump was never even considered. Rather, he is concerned about what will happen in the future if everyone writing an internal memo to him or any future AG has to worry the memo will eventually become public. His concern is that if CREW wins, all the memos he gets from now on will be written specifically to cover the writer's a**, rather than to give him good legal advice. (V)

Graham Gets a Reprieve

A federal judge ordered Sen. Lindsey Graham (R-SC) to obey a subpoena to testify in front of the grand jury Fulton County D.A. Fani Willis is using to investigate if any Georgia election laws were broken in 2020. Yesterday, the U.S. Court of Appeals for the 11th Circuit in Atlanta, sent the case back to the trial court for another look. So Graham gets a temporary reprieve.

This is an example of what is so frustrating about the courts: Everything takes forever, bouncing back and forth. The appeals court could have ruled "Yes, the judge was right" or "No the judge was wrong" and ended it. Instead it called for a mulligan.

The nominal reason for sending the case back was to look at whether the case somehow related to legislation being discussed in Congress, which is not subject to a subpoena. Surely the trial judge already considered that since Graham brought it up in the first place. What the case is about is Graham's two calls to Georgia Secretary of state Brad Raffensperger just after the 2020 election. It is hard to imagine that Graham was collecting input for some Senate bill on election administration. Certainly, Graham never mentioned any such bill.

After the lower court reexamines the case and makes a new decision, that will go back to the 11th Circuit Court again. Sooner or later it is going to have to make a decision and not just ask somebody else to do it. (V)

The State of the Races for Governor

With all the attention to the 35 Senate races, people sometimes forget that there are 36 races for governor this year as well. Larry Sabato's Crystal Ball has a nice article on them. The current gubernatorial map is shown on the left below. The Ball's predictions are on the right.

Maps for governors races; 
there are currently 22 Democrats and 28 Republicans. The predictive map suggests that there are 14 seats that are basically safe for
the Democrats and 16 that are basically safe for the Republicans. Georgia is the only state that merely 'leans' in one direction or
the other; it leans Republican. There are also five toss-ups--Arizona, Nevada, Oregon, Kansas and Wisconsin.

All the races are for 4-year terms except New Hampshire and Vermont, which don't trust their governors much and want the chance to boot them out every 2 years. As it turns out, both states have extremely popular Republican governors who will be reelected in landslides. One of us, namely (V), spent some time talking to Gov. Phil Scott (R-VT) a few years ago and can attest that he is fine fellow who is genuinely concerned about improving the lives of Vermonters. Donald Trump would probably label him a RINO. For a Republican to get elected over and over in very blue Vermont, that is basically a requirement.

Republicans are defending 20 governors' mansions and Democrats are defending 16. That conjures up images of moats around the mansions and archers on the roof, but that isn't quite on target. This year an expected 28 of the 36 races will feature incumbent governors running for reelection. In the past five midterms, 57 governorships have flipped, but only 12 involved an incumbent being defeated. The others were open seats. So about 80% of the time a party had to hand the keys to the governor's mansion to the other party, it was due to the incumbent not running. In other words, incumbent governors have a pretty solid track record.

The right-hand map above predicts only two states will flip for sure, Massachusetts and Maryland. Both are very blue states with incumbent Republican governors who are not running for reelection. Georgia might flip, but Stacey Abrams (D) is not doing so well in the polls so far, so Gov. Brian Kemp (R-GA) is favored to hang on. Republicans have at least a chance in Maine, Rhode Island, Connecticut, Pennsylvania, Michigan, Minnesota, and New Mexico, but only a chance. The Democratic incumbents are favored in all of them.

The rest of the action is in the Midwest and the West, namely the five yellow states. Two of them, Oregon and Arizona, are open-seat elections. Oregon is a blue state, but it has an unusual three-way race among former state House Speaker Tina Kotek (D), former state House Minority Leader Christine Drazan (R) and former Democratic state senator Betsy Johnson. Johnson is more conservative than Kotek and could act as a spoiler, pulling votes away from her.

In Arizona, Gov. Doug Ducey (R) is term limited and the battle is between Secretary of State Katie Hobbs (D) and former television anchor and Trump enthusiast Kari Lake. Arizona is an emerging purple state and the battle resembles the 2020 presidential election, with a moderate Democrat vs. a dyed-in-the-wool Trumpist. It could go either way.

In Nevada, Gov. Steve Sisolak (D-NV) will face Clark County Sheriff Joe Lombardo (R). Crime is an issue and each one is blaming the other one for it. Sen. Catherine Cortez Masto (D-NV) is the most vulnerable Democratic senator in the country and probably Sisolak and Masto will sink or swim together. A lot depends on turnout.

In deep red Kansas, Gov. Laura Kelly (D-KS) got elected in 2018 because the Republicans nominated an unelectable candidate (Kris Kobach). This time she is running against AG Derek Schmidt (R), who is definitely electable. If Kelly can make the race another referendum on abortion, she could pull it off, but if Schmidt can make it about anything else, he could win.

Finally, Gov. Tony Evers (D-WI) is running against businessman Tim Michels (R) in a knife-edge swing state. Evers beat then-incumbent Scott Walker by 1.1% in 2018. In a neutral year, he might be able to pull that off again against an unknown businessman, but in a red wave, he could easily drown. (V)

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