T-Minus and Counting: The Final Days to the November 3, US Elections

  With any luck the 2020 US presidential elections will be over on November 3,.  At least the voting

will be done.  Whether the voting counting and post-election litigation will be done depends on the margins of victory for either candidate in a handful of swing states.  Already the most heavily litigated election in US history with nearly 400 lawsuits so far, a close election could trigger far more.

What is the state of the election today?  Biden will easily win the national popular vote.  He has had a stable six to eight point lead for six months.  Contrary to those who claim to the contrary, the national polls were accurate four years ago and there really were no hidden Trump voters.  The issue was not surprise Trump voters so much as Democrats staying home in critical swing states and areas across the country.  Suburban women, those under 30, and people of color stayed home on election day.

It again is coming down to a cluster of a few swing states that will decide the election.  Remember, it is not the national popular vote but the race to 270 electoral votes that decides the election.  Again, four years ago the polls in the swing states were accurate.

Back in January 2020 I did my initial calculation of where the presidential race was.  I assumed back then it was Biden-Harris as the Democratic ticket–no real surprise.  I estimated that they were nearly certain to win California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, (overall state) Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York,   Oregon, Rhode Island, Vermont, Virginia, and Washington.  This is a total of 19 states plus the District of Columbia.  In the case of Maine, Democrats probably would overall win the state and three of its four electoral votes.  The other electoral vote, which is for the Second Congressional district, goes to the Republican.  Biden started with 222 electoral votes.

Donald Trump I predicted would win 24 states plus part of Maine.  These states are  Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, (Second Congressional District), Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.  Trump started with 205 electoral votes.  

Yet there were seven remaining states–Arizona, Florida, Michigan, Minnesota, North Carolina, Pennsylvania,  and Wisconsin–totaling 111 electoral  votes, which were too close to call and they were the swing states that will decide the presidency.

The race was always about these seven states.  More specifically, they were about what would happen in 11 counties in these swing states.  And more specifically, the fate of the election hinged upon 10% of the undecided voters in these 11 countries across seven states that would decide who gets to 270.  In sum, the four numbers that would decide the race were 10/11/7/270.

Back in January I then made some guesses, assigning Arizona (11), Florida (29), and North Carolina (15) to Trump.  This put Trump at 260.    I then assigned Michigan (16), Minnesota (10), and Pennsylvania (20) to Biden.  This put him at 268.  Wisconsin was the holdout with ten electoral votes and too close to call then.

Where are we now?  Some states have become more competitive, such as Georgia, Iowa, Ohio, and maybe Texas.  Polls suggest close races there but a lot depends on turnout.  These are all states Trump should win and the fact that a state such as Georgia or Texas is possibly in play is not good news for the president.  There really are no states that Hillary Clinton won in 2016 that are in serious play now.  I have long argued Minnesota was becoming a swing state but do not think so now.

Where I see the race coming down to are the three states that decided it four years ago–Michigan,

Pennsylvania, and Wisconsin.  There, a margin of 85,000 votes decided the election.  More specifically, had Clinton received 85,000 more votes across these three states she would be running for re-election now.  Notice I did not say had 85,000 votes switched.  There are few swing voters anymore.  Clinton lost in these three states because she did not campaign there and took Democratic voters for granted.  

Biden is campaigning in these states.  The critical counties in these states are showing dramatic surges of Democratic-leaning areas casting ballots.  Democrats are motivated to vote.  This is especially the case for college educated suburban women who are key to Biden’s victory much like they were key in the 2018 midterm elections.  There are also signs of young people under 30 and people of color motivated to vote.

Trump needs his base of white males without college degrees to vote in much higher numbers than four years ago.  That may happen but polls are suggesting that elderly voters who supported him four years ago are not as likely to vote for him this time because of the pandemic.

As I see it the election is coming down to the intersection of the turnout curve of white working class males without college degrees versus suburban college educated women in Michigan, Pennsylvania, and Wisconsin.   This is what decides the electoral college victory. Right now the reputable and reliable polls have Biden up in these three states, portending a victory. 

Of course, these numbers have to be discounted by the probability of lawsuits and margin of victory.  If young people and people of color turn out then it is possible in these three states the margins are high enough to withstand possible legal challenges.  Additionally, if turnout does surge and states such as Georgia, Ohio, or Texas flip then it is even less likely lawsuits will matter.

The Use and Abuse of Polls in US Elections

Among the single most frequent questions I am asked every election cycle, but especially this one, is

“Are the polls accurate?”  This question is generally preceded with the statement “The polls were entirely wrong in 2016, they said Clinton would win and she did not.”  Are the polls accurate, is there a problem with them?  Are the polls in 2020, as in 2016, missing hidden Trump voters?  To answer this question one needs to understand some basic points about polling.

Good Polls are Sort of Accurate: But Know What You are Surveying
First, when it comes to 2016, the good  national polls were entirely accurate.  They said that Hillary Clinton would win the national popular vote by about 2-3 percentage points, with a margin of error or about 3 points.  These polls were dead on score.  The problem was not the polling but  their relevance. 

 We do not elect the presidential by the national popular vote and instead it is the electoral college which is essentially 50 separate state elections (plus the District of Columbia).  National polls for the purposes of predicting presidential winners are entirely irrelevant.  Ignore them all because they are looking at the wrong unit of analysis.

Second, the state polls were largely accurate too.  If one tracked what was happening in states such as Pennsylvania days before the election one could see the polls tightening and Trump narrowing the lead on Clinton as undecided voters made up their mind.  On the Monday before the election in 2016 in states such as Pennsylvania the polls had the race dead even. 

 
Third, there were no hidden Trump voters.  Nationally and in the critical states Trump did not receive many more votes than did Romney in 2012.  The issue was not a Republican voter surge  for Trump but Democrats staying home and not voting for Clinton.

Polls are Not Predictors But Statistical Snapshots in Time
But additionally, remember first that polls are supposed to be statistical profiles of a population.   This means  that a good poll is a small sample of a larger population that resembles the latter in all relevant characteristics.  Polls are only as good as the assumptions that go into them.  Good pollsters accurately reflect who is likely to vote, the partisan, geographic, or other makeup of the electorate.  If you make bad assumptions, you get bad results.  This is the old “garbage in, garbage out” theory.

Polls also are not predictors–they are snapshots in time.  Lots of things can happen between the time a poll is done and an election occurs.  Candidate strategies matter, as do messaging, and other intervening variables.  Thinking that polls are predictors is the root of many problems.

The Flaws in FIveThirtyEight
Consider Nate Silver and FiveThirtyEight.  Four years they predicted an 80%+ chance Clinton would win.  As of October 26, 2020 the prediction is an 88% chance of a Biden victory.  The model used here is based on polls–using them as predictors of what will happen on election day.  If the polls on which they are based are wrong, the predictions will be wrong, even if we still concede that polls are not predictors.  FiveThirtyEight’s predictive model is premised on a way of thinking about polls that is simply wrong.

An Example of Bad Polling: Minnesota US Senate Race
It is possible that Biden will win, but the polls are very close in the critical swing states such as Pennsylvania, Michigan, and Wisconsin.  But accepting everything I said in this essay, there is also a difference between good and bad polls.  

Let me use as an example a recent poll conducted in Minnesota and released last week declaring the US Senate race between Tina Smith and Jason Lewis to be a dead heat.  It reported Smith with 43%, Lewis 42%, down from an 11-point lead just a few weeks ago.  Is it possible that the race has tightened, but more is going on here to question the validity of the poll.

First, the poll had a margin of error of +/- five points.  Smith could actually be at 48% and Lewis and 37%, an 11-point difference.  This margin of error was driven by the fact that there were only 625 voters registered in Minnesota.  This is a pitifully small sample.  

Second, it identified likely  voters as a registered voter and traditionally 10-15% of voters in Minnesota register on election day. 

Third, the sample contained 38% Republicans and 35% Democrats.  Unless there has been a major shift in partisan alignment in Minnesota, no credible survey lists there as being more people who identify as Republican than Democrat.  If anything, one can make the argument that a good sample should be 38% Democrat and 35% Republican, especially keeping in mind that those who do register on election day tend to be younger voters who tend to vote for Democrats.  Effectively, this survey may be skewed six or more points in favor of a Republican.

Fourth, the survey was done on-line.  Not all surveys done on-line are bad, but there is a significant digital bias of self-selection in such surveys that warrant correction.  There is no indication this survey did that.

Nerd Warning: Confidence Levels Versus Credibility Intervals
Finally, there is one last problem that only nerds like me can appreciate.  The survey did not employ confidence levels but instead a credibility interval to determine the accuracy of the poll.  Why is this important?

When polls are done the question to be asked is what is the probability that the sample is a good representation of the entire relevant population.  The smaller the confidence level, statistically the better the chances it is a good survey.  The gold standard for survey research is a confidence level of .05.  This means there is a 95% chance that the sample is an accurate representation of the entire population.  This .05 also means there is still a 5% chance the sample is skewed and therefore poll is bad.

A credibility is something different.  It is based on Bayesian statistics and it asks what are the chances that a given sample is an accurate representation of a  prediction that you have made.  

A confidence level does predict what the sample should look like but instead asks whether the sample is probably a good mini-version of the entire population, whatever its relevant characteristics are.  A credibility interval asks what are the chances a sample mirrors the pre-existing  assumptions one has made about the entire population.   

A credibility interval, in my opinion, is the wrong way to do a survey.  Effectively you make your assumptions about the composition of the electorate and test to see if you have a sample that  mirrors it.  Your initial assumptions are held constant and tested.  With a confidence level, you are not holding constant your initial electorate assumptions and instead are asking if the results you get probabilistically correct.  In effect, credibility intervals test garbage in, confidence levels test garbage out.
Many do not see a difference in these two statistical methods but they can yield differences in results and potentially skew results.

This poll was a bad one.  It made a lot of mistakes.  The only benefit to it is for Smith and Lewis who can both now say the race is very tight and therefore send money and votes.  Beyond that, it is an example of a bad poll, the kind that can also skew presidential polls which in turn can skew  predictive models such as FiveThirtyEight.

Conclusion
The morale of the story is that polls done well can be good and accurate and accurate snapshots in time.  But there is a lot of bad polling.  Even worse, there is a lot of bad analysis based on polling.  Four years ago analysts got it wrong when they let the disbelief of a Trump victory cloud their thinking.  They also failed to understand the proper level of analysis to do presidential polling and how to understand whether a poll is valid or reliable.

Trump, Biden, and the State of the US Presidential Election Today: It ain’t over till…

 

With a little more than a week before the official US presidential election on November 3, the race

between Joe Biden and Donald Trump is both over and too close to call at the same time.   The reason for this is that while national polls show a huge lead for Biden, the race for the electoral college vote in the critical swings states remains close.  It is within this context that the second presidential debate on October 22, took place.

The US presidential race is over in the sense that  as has been true for several months, the national polls put Biden in an approximately eight-point lead over Trump, with specific surveys placing the number of undecided voter  between four and five points.  There is no question that Biden will repeat Hillary Clinton’s 2016 performance and beat Trump in the national popular vote by at least 3,000,000 votes.  Moreover, more than 48 million individuals have already cast their ballots prior to November 3.   Given all this, there appeared to be fewer voters to persuade or move when the second debate occurred than at a similar time four years ago when there  were both far less early voters and more undecided voters.  All this suggests a race that looks like it is over.

            But the race is still close.  Remember that the US presidential election is not decided by the popular vote but instead it is a race to win the electoral college.  It is a 50-state race to get to 270 electoral votes.  With 48 of the 50 states awarding its electoral votes on a winner-take-all system based on the popular vote within  them, the race is effectively over in 43 states.  There are only seven states that really still matter and which will decide the next president.  They are Arizona, Florida, Michigan,  Ohio, North Carolina, Pennsylvania, and Wisconsin.  Here the race is closer, with Biden enjoying a slight lead in most of the swing states, but already 23,000,000 ballots have been cast early.  In these states, the percentage of undecided voters are around five percent. Again, far less than four years ago.  Typically, in the US undecided voters  when they decide vote against the incumbent, as was true four years ago when Clinton effectively ran as the incumbent seeking to succeed Barack Obama as a third-term Democrat.  None of this should be good news for Trump.

            Yet there is a political divide over voting in the US.  Democrats are voting early and  in strong numbers, at least based on the location where the votes are coming from.  Trump has criticized early voting and we may yet see a heavy Republican turnout on election day that could give him a victory on November 3.  There are also the probable legal and court challenges regarding early voting that might disqualify many early votes. Also Republicans are doing a better job registering new voters compared to Democrats and this may not show up in the polling. The point being that while the numbers and odds favor Biden, it is still not over yet.

            Trump needed the final debate to change the direction of the election.  It did not do that.  Trump continued to speak to his political base hoping to motivate them to vote in record numbers.  He also needs Democrats to stay home and not vote like they did back in 2016.  While this debate may have helped motivate his already activated supporters even more, there is little indication that  he was able to convince Democrats—including the critical college educated suburban women and African-American voters—to stay home.  Biden kept the focus on Trump’s vulnerabilities such as the pandemic, Trump landed good punches on Biden, race, and crime, but ultimately it is doubtful that this final debate did much to change the course of the election.  It is over in so many ways but also very close among the few voters in the few states that matter.

Amy Coney Barrett, and her Originalism: Why Individual Rights Lose

 Supreme Court Justice nominee Amy Coney Barrett is a threat to many constitutional precedents,

including Roe v. Wade (abortion rights), National Federation of Business v. Sebelius, (Obamacare), and Obergefell v. Hodges (marriage equality).  It may not simply be her ideology or pre-judged opinions that pose the problem, it is her constitutional interpretive method of Originalism that is the issue.

The foundation of the US legal system is strongly based on the concept of legal precedent.  Judges when interpreting the law or the Constitution are supposed to respect past decisions when there are similar facts.  “Like cases are to be the same” is the rule.  Respect for legal precedent is founded on the idea of stability, consistently, and the belief that people have relied on the law to operate in a certain way and it should not change unexpectedly.

Departure from precedent is supposed to be an exception and not a rule.  When it comes to constitutional precedent, the Supreme Court has only reversed itself 147 times in history.  Historically the justification for reversing constitution precedent was that the prior decision  proved no longer to be workable or that  the conditions under which it was decided had so changed that the factual basis for it had been undermined.  Precedent could also be rejected if new facts pointed to the lack of viability of the old decision.  Deference to constitutional precedent historically was firm even though the Court has said it should not be given as much respect for statutory precedent because the latter would be easier for Congress to overturn or overturn if the Court made a mistake.

Up until the Warren court of the 1950s and 1960s, rarely were past constitutional law decisions by the Supreme Court reversed by a later decision.  From 1788 until 1953 there were a total of 49 reversals.  Since 1953, 98 reversals, with 76 coming since Richard Nixon sought to push the Court ideologically in a conservative direction.  The big change came in 1986 when William Rehnquist became Chief Justice and Antonin Scalia an Associate Justice.  

Scalia especially brought to the Court his theory of constitutional interpretation called Originalism.  This theory said that in order to limit the discretion of judges in making policy or substituting their own opinions for that of elected officials, they should interpret the Constitution in terms of the intent of the Framers.  Intent could be ascertained by looking at the plain language of Constitution and dictionary definitions of terms used in it by the Framers at the time they wrote.  Historical documents, such as the Federalist Papers, could also be deployed.  For Justices such as Scalia, Originalism guaranteed the Constitution and Bill of  Rights had their meanings anchored in time, providing stability and certainty.

While elegant in theory, in practice Originalism is flawed in  many ways.  It assumes the Framers were of one mind when they drafted the Constitution.  It naively believes that one can reconstruct the past accurately to ascertain historical intentions and apply them to a world they could not envision.  It falsely assumes a theory of history no longer accepted by historians that one can simply recount the past by “telling it like it was.”  It overlooks that many of the Framers were slaveholders and the original document embodied believes and assumptions most of us now reject. But the major problem is that Originalism  does two damaging things:  One it ignores rights.  Two, it threatens constitutional precedent.

Antonin Scalia’s Originalism was not politically neutral.  Scalia was conservative, everyone knew that.  In my books and many articles on him I demonstrated a pattern to his decisions based on the issue or the litigant.  Others who study the Court and Justices have shown that too.  One theory is that Originalism is simply a tool to mask or justify conservative outcomes. But alternatively, Originalism locks the Constitution in time to 1787 when it was drafted. This was a time when, as former Justice Thurgood Marshall once said, the first three words of the Constitution “We the people” excluded women, people of color, the poor, and those who were not Protestant.  The concept of rights and who had a  voice in the American republic has evolved.  Originalism ignores this.  It freezes rights in time, ignoring  how,  to paraphrase what the Supreme Court once said in Trop v Dulles that the law’s meaning must be looked at through the “evolving standards of decency that mark the progress of a maturing society.”  Originalism ignores this evolving decency, how our conception of what free speech, privacy, or  equality means have evolved over time, and what it means to be a democratic republic.   When Originalism confronts modern rights, the latter generally lose.

But an equally fatal defect of Originalism is found in how it fails to understand the role of precedent in the law.  There may be an original Constitution that had some meaning, but over time  it has been interpretated, creating precedents to guide judicial reasoning.  The meaning of the Constitution and the Bill of Rights includes these precedents.  Since the 1980s, and especially now under the Roberts Court, the Originalists, including Justices Thomas and Alito as seen recently in a case where they expressed disagreement with the way Obergefell was decided, have  expanded the grounds for the overrule of precedent.  They repeatedly quote the phrase “precedent is not an inexorable command” and that if a decision were simply wrong or badly  or insufficiently reasoned, that is grounds to overrule it.  Originalism ignores how the law evolves and grows, and it runs roughshod on the settled expectations of what the law has come to mean.  It rips the law out of its contemporary context and meaning.

Amy Coney Barrett is an Originalist, a student of Scalia.  No matter what assurances she gave to the Senate about remaining open-minded to precedents,  either her past comments on the law, her legal opinions in cases, her ideology, or her interpretive method question her fidelity to precedent. Like her mentor she argued in a 2013 Texas Law Review Article that precedent need not always be followed and in her list of “superprecedents”—supposedly cases that could never be overruled—she excluded Roe v. Wade.  By her own analysis respect for precedent is a self-imposed restraint on the Court, not something they have to necessarily follow, and her Originalism, like that of her mentor Scalia, is either a façade for her political views or a method inherently hostile to rights.

 

Covid-19, Presidential Succession, and the 2020 Elections: What the Constitution Says

         President Trump has the coronavirus.  While all should wish him well, one still has to think about

what happens if: 1)  he is incapacitated and unable to perform his duties as president; or 2) his health precludes him from continuing as a candidate for president of the United States.  What happens?

            The simple answer is that the presidential succession issue is easier to handle than is the election issue.  By that, addressing the issues of an incapacitated President Trump are easier to handle than that of an  incapacitated candidate Trump. Let’s review the law.

Presidential Incapacitation

            Section one of the Twentieth Amendment declares that a presidential term expires at noon on January 20.  This means that Donald Trump remains president until noon, January 20, 2021.   But what happens if he dies before that date?

            The Twenty-Fifth Amendment to the Constitution addresses this issue.    Section one is clear–in case of death or removal of the president the vice-president replaces him.

            But what if he does not die, but is incapacitated, such as very ill?  Section three of the Twenty-Fifth Amendment declares that if the president transmits to the Speaker of the House (Nancy Pelosi) and President Pro Temp of the Senate (Chuck Grassley) that he is unable to perform his duties, then the vice-president will serve as acting president.  This will happen until such time as the president again informs Pelosi and Grassley he is able to perform his duties again.

            But what if the president is too ill to communicate with the Speaker and the President Pro Temp of the Senate?    Here Section Four of the Twenty-Fifth Amendment addresses that.  It allows for a situation where if the vice-president and a majority of the principle officers of the executive departments (the cabinet) conclude the president cannot perform his duties, they will transmit a letter to the Speaker and President Pro Temp and the vice-president will serve as acting president until the president is again able to serve.

            But let us now say that the president and the vice-president die, or their offices are vacant.  What do we do?  If Pence becomes president he would remain so until January 20, 2021.  Section two of the Twenty-Fifth Amendment allows  him to nominate a new vice-president, subject to majority votes of both houses of Congress.

            If there are vacancies in the presidency and vice-presidency, the Presidential Succession Act of 1947 covers this.  The line of succession would first be Speaker of the House, then President Pro Temp of the Senate, and then the Secretary of State, Secretary of Treasury, and then to other prescribed cabinet positions.  The succession here would allow the person to become president until the end of the term on January 20, 2021.

 

Replacing the President as the Party Nominee

            What if Trump dies or can no longer serve as the Republican Party presidential nominee? Is Mike Pence the automatic nominee?  No.  The 2016 Rules of Republican National Committee (Rule 9) allow for the filling of a vacancy.  It does so by a vote by states in the RNC.  It could be that the committee picks Pence or someone else.  It is their decision.

 

 

Replacing Trump on the Ballot

            Replacing Trump on the ballot if he were to die or become incapacitated to run before the election is more complicated.  As of October 2, 2020, the US is 31 days before the November 3, election,  Ballots have been printed and millions have voted absentee or by mail. 

            First, there is the difficulty of getting Trump off the ballot and replacing him with the alternative Republican nominee.  At this point this is probably not possible with a November 3, election date.  The election cannot be postponed except by an act of Congress (law).  There is also a limit in terms of how long the election can be postponed because the Constitution ends congressional terms of January 3, the presidential term on January 20.

            The other problem is that  millions have already voted, and perhaps for Trump.  If he is dead do votes for him automatically transfer over th the new Republican candidate?  Not necessarily.  This is a matter of state election law.  Back in 2002 when Senator Paul Wellstone died 11 days before the election day for his seat approximately 25,000 absentee ballots had been cast.  The court in Minnesota Supreme Court ruled in Kiffmeyer v Erlandson that it would be a denial of the right to vote to automatically transfer the votes from Wellstone to his replacement Walter Mondale.  Other states may reach different conclusions but the issue on how to handle the ballot transfer or qualification issues is a matter of state election law that differs across all 50 states.

            The question is if Trump is no longer on the ticket but still on the ballot, how should the electors cast their ballots?  Several states have “faithless electors” laws that compel them to vote for the person who won the popular vote in the state.  If Trump’s name was still on the ballot the electors may still be required to vote for him, even if he were not alive.

 

Death after the Election

            Assume Trump wins the election, what happens if he were to die after November 3?  A lot depends on when he dies.

            Remember, if he dies after the election but before January 20, 2021, Pence becomes president to complete the existing term.  But who gets sworn in for the new term starting on January 20, 2021? Section three of the Twentieth Amendment partially covers this.

            Assume the president has died after December 14.  Why?  That is the date the electoral college meets.  If it has met and the Trump-Pence ticket received the required 270 electoral votes, then Pence would become president on January 20.

            If Trump died after November 3, but before December 14, then one would need to see how the electors vote.  If Trump-Pence win 270 then Pence presumably becomes president. But it is also possible that the electors could cast their ballot for someone else in state without the faithless elector law, or perhaps they would still be required to vote for Trump.

            Finally, assume no one received the required 270 electoral votes as a result of all this.  What happens?  The Constitution (Article II and the 12^th Amendment) state that the new House of Representatives elected this November and taking office January 3, 2021 would select the next president.  Here, each state would get one vote and it would take a majority of states to select the next president.

 

Conclusion

 

 

            The US is in historically uncharted territory right now.  This does not mean a crisis.  There are some law that covers what may happen next but it may not address all contingencies.