Friday, September 25, 2020

All Falls Down edition


Happy autumn!

… except nothing is happy and it feels like it never will be again.

But wallowing in our anguish is a luxury we can’t afford, and besides, as one of my favorite philosophers is known for saying, “Pain don’t hurt.”

What does hurt, though, is knowing that nearly a decade of Democratic down-ballot neglect could assist Donald Trump’s schemes to remain in the White House at any cost.

As an erudite consumer of this missive, you’re likely aware of the dark political reality we face right now: Trump and those in his orbit are actively scheming and laying groundwork—rhetoricallegal, and otherwise—to cast doubt on the result of this presidential election if it doesn’t go his way.

The ways Trump might go about that are myriad. But one in particular could very much come into play in key swing states with GOP-controlled legislatures.

… which, thanks to gerrymandering, is all of those key swing states.

  • Florida? 23 R/17 D Senate, 73 R/47 D House.
  • Michigan? 22 R/16 D Senate, 58 R/51 D House (1 vacancy).
  • North Carolina? 29 R/21 D Senate, 65 R/55 D House.
  • Pennsylvania? 28 R/21 D Senate, 109 R/92 D House (2 vacancies).
  • Wisconsin? 19 R/14 D Senate, 63 R/36 D Assembly.

So, why might this matter?

An expansive Atlantic piece about the various ways this election could go extremely pear-shaped published just this week leaned on a Loyola University Chicago Law Journal article to game out a pretty plausible hypothetical in Pennsylvania.

Here’s how it could go down:

  • As you know, in every state but two, the winner of that state’s popular vote gets all of that state’s electoral votes.
    • In Maine and Nebraska, two electors are assigned based on the candidate who wins the statewide popular vote, but if the other candidate wins any of that state’s congressional districts, the remaining electors are allocated accordingly.
  • Every state’s electoral votes are cast by a pre-selected slate of electors determined by each party earlier in the year.

So, imagine it’s election night.

Polls are closing. Voters have been voting.

Lots of voters actually voted weeks ago by mailing in their ballots.

  • But in some states, election officials can’t begin counting those mail-in ballots until Election Day itself.
    • And counting those ballots takes a while! They have to be removed from envelopes, unfolded, signatures verified, etc. before they’re ever fed into a counting machine or undergo whatever tabulation method that state employs.
  • In Michigan, Pennsylvania, and Wisconsin, the counting of mail-in ballots can’t begin until Election Day.
    • Election officials get a bit of a head start in Florida and North Carolina.

In Pennsylvaniamore than 2 million voters have already requested the state mail them absentee ballots.

  • Of that number, 70% are Democrats.
    • Which means fewer Democrats plan to cast their votes in person on Election Day relative to the number of Republicans planning to do so.

So, right, it’s election night.

Pennsylvania’s in-person votes get tallied as the laborious endeavor of counting those mail-in ballots also gets under way.

By the next morning, all of the in-person votes will have been counted.

But it’s likely that the counting of the mail-in ballots will still be going on.

  • Pennsylvania is a closely divided state in terms of partisan propensity.
    • Biden is generally favored to win here, but not by the ridiculous margin probably required to give him an obviously insurmountable lead by the time most Americans go to bed on election night.

Ballot counting continues into Nov. 4, but Trump is already calling for a halt, baselessly screaming about fraud and illegal voting and Martians invading or something.

Seriously, who knows? All we know is that he’ll claim anything to serve his cause.

  • In a non-Trump reality, vote tallying would continue, election officials would certify the results, that candidate’s electors would cast their ballots on Dec. 14, and life would go on.

But this hypothetical is taking place in the Trump era.

And Trump and his ilk are already telling us what they’re going to do.

  • So, say Biden’s small Nov. 3 vote deficit goes away or his small lead increases as more and more mail-in ballots are counted into Nov. 4 (and likely beyond).
    • Election officials certify the results, and Pennsylvania’s Democratic governor sends a “certificate of ascertainment” to the National Archives and the president of the. U.S. Senate, thus notifying the federal government of which candidate’s electors have been officially appointed.

But election results in Pennsylvania won’t be certified until Nov. 11.

Which gives Republicans a full week to stir shit.

And, as we know all too well these days, a lot can happen in a week.

  • During this week, Trump and his allies would be clamoring for vote-counting to stop and screaming that any votes counted after Nov. 3 (never mind that they were received days or weeks earlier) are somehow fraudulent.
  • The Republicans who control the state legislature take this cue and claim that the vote tally can’t be trusted because it keeps (logically!) shifting in Biden’s favor as more of those overwhelmingly Democratic mail-in ballots get counted.
  • So suddenly those Republican lawmakers decide that Article II of the U.S. Constitution allows them to ex post facto allocate electors as they see fit, rather than the voters of Pennsylvania.
    • They’ll yell about how the vote tally is “suspect” or “questionable” or “fraudulent” or whatever suits them, and they’ll claim that Article II gives them the authority to supersede the actually very legitimate results and replace the duly appointed Democratic electors with electors of their own choosing.
      • Which would be Trump electors, naturally.
  • Legal theories and claims will be thrown about, but in our hypothetical, ultimately these Trump electors meet and send their own “certificate of ascertainment” to the National Archives and the president of the U.S. Senate.
    • … who just happens to be the vice president sharing a ballot with Trump.

So, when Congress convenes on Jan. 6, 2021, to officially count the electoral votes, they have two conflicting certificates of ascertainment from Pennsylvania.

  • Imagine this also happening in Michigan, where absentee ballot requests are already twice what they were in 2016.
    • Election results aren’t certified there until Nov. 23, giving the GOP even more time to pull shenanigans.
  • And let’s add Wisconsin, where mail-in ballot requests are more than six times what they were in 2016.

Scared yet?

A Trump campaign legal adviser has reportedly already affirmed that this GOP state legislator interference strategy is very much a part of the campaign’s playbook.

But what are Republicans in these states saying?

Ooooh I hope you weren’t expecting reassurance

Reporters have begun to ask other GOP leaders in other states about this Trump vote-invalidation scheme.

  • While a spokesperson fo the Wisconsin Elections Commission correctly responded to a reporter’s inquiry that existing law in the state doesn’t give lawmakers the ability to choose electors, I’d like to point out that state law doesn’t outright prohibit it, either.
    • GOP Assembly Speaker Robin Vos claims that “there’s no such effort” to invalidate actual election results in Wisconsin.
      • Republican Senate President Scott Fitzgerald didn’t respond to requests for comment.
    • But Vos already has a history of casting doubt on narrow statewide Democratic victories.
      • After Democrat Tony Evers narrowly defeated GOP Gov. Scott Walker in 2018, Vos suggested that Wisconsin’s two largest cities—Milwaukee and Madison—shouldn’t really count.

Because over 800,000 Wisconsinites’ votes shouldn’t count because they happen to live in cities, I guess?

  • But let’s extrapolate that attitude towards a hotly contested, close presidential election in the state.


  • Yet another thing we can expect from Republicans this year is active voter intimidation and suppression efforts at urban polling locations.

How do we know this?

Because one of Trump’s top reelection advisers was caught on tape saying as much.

  • You see, way back in 1981, the RNC and the New Jersey GOP had off-duty policy stand at polling places in urban areas wearing armbands that read “National Ballot Security Task Force” as voters cast ballots in that year’s gubernatorial election. Some of these cops were visibly armed.
    • The DNC sued, alleging that this conduct was designed to intimidate Black voters.
    • Without admitting what they were actually up to, the RNC agreed to a consent decree restricting Republicans’ ability to engage in activities allegedly related to “ballot security.”
  • In 2018, a judge lifted that consent decree.
    • And a Trump official has promised that Republicans are going to “start playing offense” and have “a much more aggressive program” in light of these newly relaxed restrictions.

I mention this in the context of Wisconsin because that’s where this admission was recorded.

But it’s fair to expect to see the GOP executing overt voter intimidation activities in cities in every swing state.

But anyway, let's take a quick look at the other states the Trump campaign might try this “elector invalidation” scheme in.

  • In North Carolina, Republicans would need to convene a special session to pull off such an antic, and they lack the three-fifths majority the House and Senate required to do so (and obviously Democratic Gov. Roy Cooper isn't going to call one).
  • Florida’s Republican legislators (they controlled the legislature even back thensort of pulled this Trump stunt back in back in 2000.
    • The GOP governor and GOP secretary of state had already submitted the state’s “certificate of ascertainment,” but Democrats were disputing the outcome.
    • Republican lawmakers were reportedly preparing to replace Democratic electors if the ensuing court battles didn’t go their way (but, obviously, SCOTUS ruled in the GOP’s favor in Bush v. Gore).
      • So we can fairly assume the current crop of Republican lawmakers won’t hesitate to do the same (and their GOP governor certainly won’t stand in their way).
  • In Michigan—that other state that won’t start counting mail-in ballots until Election Day itself—Republican legislative leaders haven’t yet gone on record saying they won’t seek to replace Democratic electors with their own party’s or that they won’t cast doubt on election results they don’t like.
    • Michigan Republicans are, however, fighting tooth and nail to not count ballots postmarked by Nov. 2 but received after Election Day.
      • So it’s not a stretch to imagine GOP lawmakers will seek to cast doubt on the legitimacy of those ballots.
      • And thus cast doubt on a narrow and/or growing Biden victory.
        • And the legislature here will still be in session, so Republicans are free to convene and pull all manner of elector shenanigans.

Is it pretty extreme to claim that Republican legislators are likely to help Trump steal the presidential election?

Sure. But it’s also entirely within the realm of possibility.

  • And Republicans in all of these states have spent the past decade doing whatever they deem necessary to hold on to power—everything from gerrymandering to passing voter suppression laws to stealing power from Democratic governors to busting the unions that used to be major parts of Democratic infrastructure in many of these states.

I’ve been watching these cats for ten years. Literally nothing they do would surprise me.

  • … including subverting the will of their own states’ voters to steal the presidency for a member of their own party.

They’ve neither feared nor faced real repercussions for their naked exercises of partisan power so far.

So why would they start worrying about it now?

Okay, that was a super bummer, so let me at least round this out with some positive news.

With everything else going on, it’s totally understandable if you didn’t notice that the nation's primary elections finally concluded last week.

Democracy hooray!

This means that my extremely excellent Daily Kos Elections colleagues have finally been able to complete the 2020 edition of the Daily Kos Elections State Legislative Open Seat Tracker! 

And the news is ... good!

  • Overall, Democrats are contesting more Republican-held seats at the legislative level than the reverse.
  • Also, fewer Democratic incumbents have opted to retire.

These are legitimate reasons for optimism about Democrats’ down-ballot prospects across the country!

  • This year, 5,876 seats are on the ballot across 86 legislative chambers in 44 states nationwide.
    • We've counted 361 Republican and 298 Democratic incumbents who are calling it quits this fall.
    • An additional 113 Republicans and 82 Democrats are term-limited and will not be on their states' respective ballots this November.
    • And 90 Republican and 60 Democratic incumbents were defeated in primary elections this year.

A detailed seat-by-seat look at each open seat and their underlying partisan lean (as measured by 2016 and 2012 presidential election results, where available) is listed on the second tab of the chart.

  • As part of this tracking, we've also kept track of the number of seats held by each party that are being left uncontested in the November elections.
    • 1,047 seats held by Democrats with no Republican opposition, or roughly 38% of Democratic seats on the ballot this year.
    • At the same time, 1,013 Republican-held seats, or 33% of the GOP's total, have no Democratic challengers.

Put another way, Democrats are fielding 2,035 candidates for seats held by Republicans, while the GOP has only put up 1,709 candidates for seats held by Democrats.

While every year is an important year for state legislative races, the impending round of redistricting makes 2020 especially urgent.

… but you knew that already

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