Trump demonstrates why we should limit the powers of lame-duck presidents

My latest appears in The Hill.

 Constitutionally, U.S. presidential power is all-or-nothing. Either one is president of the United States

with the full scope of authority, or one is not, lacking any formal powers. This is the reality even after elections with lame-duck presidents and presidents-elect during transitions.  This needs to change.

As with so many other issues, Donald Trump’s presidency has revealed flaws in our   constitutional design, one created for a horse-and-buggy era, or when it was assumed that the leaders we selected would observe certain unwritten rules about the use of presidential authority.  Presidential transitions are one of those areas that need fixing.

The Constitution’s Framers likely gave little, if any, thought to presidential transitions in 1787.  They called for the Electoral College to pick the president, but there was no uniform date for when the electors would vote and no explanation about when a president would take office. George Washington took office on March 4, 1789, simply because that was the date the Constitution took effect. That date stuck until 1933, when the 20th Amendment set Jan. 20 as the date for a new presidential term to start. That amendment and the Uniform Time for Federal Elections Law, which dictates that the presidential election will occur on the first Tuesday after the first Monday in November, mean that between Election Day and inauguration day nearly two-and-a-half months will pass. This means that a person rejected by voters still enjoys the full perks of presidential power long after being voted out of office, while the newly chosen leader must wait to act.

It is not that way in other countries. Across the world, either transition periods are dramatically more brief in time, or the existing leaders are limited to performing caretaker functions. Yet handoffs of presidential power in the United States are different. While the Presidential Transaction Act of 1963 provides funding and resources for new presidents, it does little else.  Our Constitution leaves it to the incumbent and the president-elect to work out transitions. Historically, all but for 1860 with the election of Abraham Lincoln and the Civil War, the transitions have been mostly uneventful.

But outgoing presidents often have used the lame-duck period to cement in their legacy — for good and bad. They issue executive orders, grant pardons, or take other actions. Some would argue they use the opportunity to act without political constraints to do things they believe are good for the country but that may not be popular — again, such as issuing unpopular but merciful pardons, or invoking the Antiquities Act to preserve federal lands from development.

Yet President Trump’s last acts as president appear to be more destructive than good for the country. Witness his actions to try to overturn the election results, and his persistent refusal to cooperate in the transition by denying President-elect Biden’s team access to vital intelligence and other information that is important to national security. Also consider his decisions to veto a military budget bill, impede a pandemic relief bill, issue pardons to his supporters who broke the law, executive orders on the environment, and perhaps make foreign policy decisions that affect U.S. interests. At best, lame-duck presidents should not be able to make such major decisions. At worst, these appear to be efforts to sabotage an incoming administration before it gets started. 

One can hope that Donald Trump is a one-of-a-kind president and his exit is unique. But he is only the most extreme example of a problem regarding presidential transitions that should be fixed. The process of selecting a president involving the Electoral College may foreclose a shorter transition period — but even if it could be briefer, the use of lame-duck powers and the absence of authority for the president-elect persists.

By law, and perhaps constitutional amendment, these problems might be fixed. For example, we could limit lame-duck executive orders, presidential vetoes, judicial and other appointments, and pardons. Incoming presidents should have a say over post-election legislation and be given automatic access to intelligence, and perhaps even authority to take action in some situations.

The Founding Fathers were smart but they failed to think about presidential transitions of power.  Many presidents have sought to use post-election time as a last-ditch effort to cement their legacies, and Trump more than most has demonstrated the problems with leaving the hand-off of power to goodwill and chance.

The 2020 US Presidential Race Ain’t Over Until It’s Over (it’s over)

 

American baseball icon Yogi Berra once declared “It ain’t over till its over.”  Donald Trump,

Republicans, and his supporters can protest all they want, but by the end of December 8, 2020, the presidential race is over and Joe Biden has won… fair and square. It is now time to follow the sage advice of the American actor John Wayne

December 8, 2020 was a momentous day in the 2020 US presidential cycle.  The US Supreme Court rejected Trump’s request to hear  his appeal of the  vote results in Pennsylvania. At both the federal district and court of appeals levels Trump’s claims of voter fraud were rejected.  In the case of the latter court, a Trump appointee wrote the opinion declaring that there was no evidence presented that there was wide spread voter fraud in that state’s election and therefore there was no case.  In turning the president’s appeal down today, the Supreme Court effectively affirmed that point.

Additionally, December 8, is important for another reason.  Under 3 U.S. Code §5, states that have settled on the method of resolving  electoral college delegate disputes before the election and have the disputes settled six days before the electors meet would have them presumptively upheld by Congress on January 6, 2021 if there were any disputes.  This law is known as the “safe harbor” provision. With California having certified its election results on December 4, 2020, that put Biden at 279 electoral votes, and with the passing of the  safe harbor date,  states are free to cast their electoral votes on December 14, Biden will have enough electoral votes to win, and Congress will be obligated to certify the electoral vote count on January 6, 2021.

There is nothing that can stop Biden’s victory now.  The Texas Attorney General’s lawsuit on December 8, seeking to prevent several states from certifying their electoral votes  will go nowhere. The State has no legal standing to challenge what other states do with their electoral votes.  The Constitution gives states nearly complete discretion to allocate their electoral votes in ways they see fit.  Just this spring in Chiafalo v. Washington, --- S.Ct. ---- (2020), the Supreme Court affirmed that point.  Additionally, for anyone who understands American law, Texas has no legal standing to bring the case—it has suffered no legal injury.  The lawsuit is grandstanding at best.

            But then again, all of the lawsuits have been that.  Trump and his allies have lost every substantive lawsuit they brought.  Across state and federal courts, and even with state legislatures, he has had multiple opportunities to show fraud and failed.  The reason why he has failed is simple—there was no proof of fraud.  The courts have adjudicated that, recounts have proved that, legislative hearings have shown that.  You can’t prove what does not exist.

            December 8, was the last hurrah for Republicans.  That is why in states such as Minnesota there were final claims of voter irregularity and fraud.  It was one final effort to appease a base of voters unable to accept the fact they lost in a fair election.

            Ross Douthat’s bloated  New York Times essay offers many reasons for the many people who cannot accept that Trump lost.  But simply stated, cognitive dissonance, confirmative bias, partisan political polarization, and a  pandering fragmented media  in search of audience (and therefore telling them what they want to belief and not what they should know) and profits are the  causes.  It also has not helped that Trump himself is still in denial.

            What now?  Back in 1960 the American actor John Wayne was a conservative who voted for Richard Nixon. But in 1960 he said this after the election of John Kennedy: “I didn’t vote for him, but he’s my President, and I hope he does a good job.”  John Wayne had many faults, but he was an American first and  not a sore loser.  So was  Al Gore and Hillary Clinton in 2000 and 2016 when despite winning the popular vote for the presidential election they lost the electoral vote and the presidency to George Bush and Donald Trump respectively.

            It is time for Mitch McConnell and all the other Republicans in the US to emulate Wayne, Gore, and Clinton.  Put the country ahead of  partisanship and pettiness.  Recognize for good or bad  Joe Biden won fairly, and move on.  It’s over more than ever.

No--The Donald Trump Cannot Pardon Himself and other Legal Fallacies

 Note: An earlier version of this essay was published in this blog on April 25, 2018.

President Trump can probably pardon his family, friends, confidants including Rudy Giuliani. And that is the problem.  And that is a problem. No credible legal mind thinks the president can pardon himself.  For anyone to think so is yet even a bigger problem.

The concept of unlimited discretion of the president to issue pardons and reprieves for all crimes and bad behavior is clearly inconsistent with the concept of limited government, federalism, and checks and balances and the courts need to rethink the constitutional doctrine that allows for such unchecked authority.

 The historical roots of presidential pardoning power are sourced in British monarchical power.  At one time British kings and queens had unlimited political power, subject to no checks and balances.  “Rex non potest peccare”–“The king could do no wrong”–was the legal theory that gave monarchs not just unimpeachable political power to command, but also the capacity to forgive and pardon.  To paraphrase The Merchant of Venice, the quality of mercy could be strained, as determined by the king.

 Yet the idea of unchecked monarchical power in England ended if not with the Magna Charta in 1215, it did so with the adoption of the English Bill of Rights in 1689 and the Glorious Revolution in 1688-89.  Kingly power was subject to limits and, as British philosopher John Locke would argue in his Two Treatises on Government, legitimate governments and authority are subject to limits defined by the rights and consent of the people.  No government official, including a king, should be given unlimited and unchecked authority.

 Locke is considered America’s philosopher; he heavily influenced the Founding Fathers, including Thomas Jefferson.  In writing the Declaration of Independence, the famous second paragraph that begins with “We hold these truths to be self-evident” is homage to Locke. The second half of the Declaration of Independence reads like a criminal indictment against the king–further attesting to the idea that our political system was founded on a fear of unlimited executive power that needed to be check.

So to is the opening words of the Constitution–“We the people”–and even the Bill of Rights.  All of these documents speak to the idea of a government of limited powers and authority, that no one person is above the law, and that the very idea of American constitutionalism is one where there are no inherent and unlimited powers vested in anyone person, office, or body.  The constitutional framers fear of kings and unbridled abuse of power and discretion is the reason for separation of powers and checks and balances.

 However some kingly like powers seemed to work their way into the Constitution. Article II, Section  2 grants that “The President . . . shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  During the Constitutional Convention and debates surrounding its ratification critics feared that the power would be abused and that it needed to be checked, including perhaps by the Senate.  These calls were rejected, and as Alexander Hamilton argued in Federalist number 74: The “prerogative of pardoning should be as little as possible fettered or embarrassed.” But it is not clear that all the Framers intended the pardoning power to be unchecked at all.  The debates at the Constitutional convention demonstrated many concerned with granting presidents unlimited power, others seeming to assume that presidents would excise appropriate discretion in its use.  Unfortunately the courts have not agreed to such checks.

 In Ex parte Garland (71 U.S. 333, 1867) the Supreme Court said of the pardoning power that the

             "power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

Mainstream legal doctrine after Garland suggests presidents can pardon for federal crimes only.  The principle of federalism prevents a president from using a pardon to protect against crimes committed against state law.  The pardon does not extend to civil judgments at any level of government.  And the president cannot pardon himself no matter what.

Yet the pardoning power scope is so broad that it even allowed President Gerald Ford to pardon Richard Nixon before he had been indicted for any crimes.

 President Ford’s pardon of Richard Nixon was controversial, and some say it was the reason why Gerald Ford eventually lost a very close presidential race to Jimmy Carter in 1976. It also forever tainted Nixon as a crook–why pardon him unless he did something wrong?  In fact, in Burdick v. United States, 236 U.S. 79 (1915), the Supreme Court suggested that acceptance of a pardon came with it the acknowledgment of guilt.

           This brings us to the differences between legislative immunity and a pardon. They are         substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it (236 U.S. at 94)

Since this pardon, other presidents have used their powers to pardon for political reasons. In 1981 President Ronald Reagan pardoned two FBI agents convicted for authorizing illegal searches of property of antiwar protestors in 1973. In 1992 President George Bush pardoned former defense secretary Caspar Weinberger and other individuals associated with the Iran-Contra Affair during the Reagan administration, and in 2001 President Bill Clinton pardoned Patty Hearst, a kidnaped heiress turned member of the Symbionese Liberation Army, and Marc Rich, who had been indicted on charges of making illegal oil deals and tax evasion. The latter pardon was considered controversial because Rich’s wife was a significant political donor to Clinton campaigns. George W. Bush issued very few pardons and Barack Obama issued 212 complete pardons and another 1,715 commutations of sentences.  While all these pardons met constitutional muster, no  doubt some could be considered abuses of presidential power.

Presidents do have a constitutional power to pardon and mercy is something they should be allowed to show, using the pardon as a way to correct injustices.  Yet pardons should not be beyond  constitutional limits and review.  Presidents who abuse their pardoning power might not get reelected–as in the case of Gerald Ford.  But these checks are insufficient, and if the dicta in Garland is taken seriously then nothing would prevent presidents from pardoning themselves, relatives, political allies, and friends.  A constitutional morality that takes rights seriously and also believes that no one should   profit from their own wrong or stand beyond accountability should not allow for unchecked presidential pardoning power.  Presidents are not kings, they do and should not have inherent and unlimited authority to do anything, including pardon.

The Supreme Court got it wrong in Garland and it is time for the Supreme Court to overturn that precedent.  That decision and dicta are a relic from a different era and legal system.   The best chance of revisiting Garland may come if Donald Trump   seeks to pardon himself or is implicated in a bribery pardon scandal.  A self-pardon would certainly merit a Supreme Court review that might allow it to rethink Garland.  A pardon issued in the context of a bribery scandal should simply be viewed as null from the start since it is a criminal act.  This type of pardoning would also suggest in the history books that the president and all those who he pardoned ascknowledged their guilt of crimes they had commited even if not indicted or convicted.

If the American Revolution and Constitution stand for anything it is that no one is above the law.  Granting presidents unchecked pardoning power,is inconsistent with separation of powers and checks and balances in that it undermines the ability of the judiciary to act and hold people responsible for contempt.  Unlike kings at one time, we do not presume that presidents can do no wrong and instead the logic of the Constitution is premised on the notion that–as James Madison said in Federalist number 51, that “Men are not angels"–and that there should be limits on all uses of power. Over time the Supreme Court has issued numerous decisions limiting presidential powers, and the same needs to occur with the pardoning power.

The Problem with Governing by Presidential Executive Order

 

As Donald Trump leaves the presidency his last task will be to issue a batch of executive orders meant

to cement his legacy.  Among the first tasks Joe Biden will perform on January 20, 2021 after he becomes president will be to issue a batch of executive orders to undo those of his predecessor.  Both Republicans and Democrats will cheer for their side’s executive orders. Is this any way to run a government?  Unfortunately, the answer has become yes, and that is a problem that needs to be fixed.

            It seems like an endless quadannular cycle.  Presidents come and go and with that executive orders change.  For example, when Bill Clinton became president in 1993 he issued an executive order reversing one issued by Ronald Reagan that had banned the use of US foreign aid funds to groups that supported abortion.  In 2001 George Bush reserved that executive order.  In 2009 Barack Obama reversed Bush’s order.  In 2017 Donald Trump reversed Obama’s order.  In 2021, Joe Biden will reverse Trump’s order.  There are scores of other executive orders that have a similar pattern and fate.

            Executive orders have been around since George Washington.  There have been nearly 14,000 executive orders issued since 1789.  Franklin Roosevelt issued the most with 3,522, William Henry Harrison the least with zero (he died within a month of his inauguration).  In recent history,  Bill Clinton, George Bush, and Barack Obama respectively issued 254, 291, and 276 executive orders, each in two terms.  Donald Trump has issued 195 so far in one term, even after declaring as candidate he would not resort to governing by executive order.

            There are two constitutional basis for executive orders.  The first is found within Article II of the Constitution that vests in the president executive power and which authorizes him to  take care that the laws be faithfully executed.  These powers give the president some discretion to make routine administrative and law enforcement decisions.  Executive orders issued under Article II are policy but not law per se, and presidents can issue them at will and overturn them  at will.  These constitute a large percentage of the type of executive orders presidents issue, including ones Trump will pronounce in the next few weeks and which Biden will reverse.

            The other type of executive order premised upon Congress delegating authority to the president via the law.    This delegated power gives presidents and the executive branch the authority to issue rules or regulations—often to fill in the gaps in laws—or act in emergencies.  Executive orders issued pursuant to delegated power carry the force of law and the Administrative Procedures Act generally has rules regarding when and how they can be issued and how they can be repealed.  Executive orders regarding the environment, energy, food or health, banking, or the workplace often fit into these category.

            Obama but more so Trump has used executive orders for this purpose.  Presidents are using executive orders more because of the partisan polarization stalemating governing in Washington, D.C.  Similar problems at the state level, including Minnesota, when it comes to governor’s executive orders, most recently with the pandemic.

The Trump administration has arguably had the worst records ever among  US presidents in court regarding having these executive orders struck down because it failed to follow proper procedure in issuing them.  No surprise here.  Trump and his administration largely were ignorant or indifferent regarding legal protocols and procedure, thinking that being president was like being a CEO on The Apprentice or sitting in the executive suite of  Trump Towers.  The final story of the Trump administration in part will be told about how less effective he was because of his procedural ineptitude with executive orders and governing in general.

            Trump’s coming wave will meet a similar fate.  Biden will overturn many on day one, many of the others will be invalidated in the courts, even by judges he has appointed.  But these checks beg the broader question—is governing by executive order any way to run a government?

            The answer is no.  Presidents have become too powerful and need to have their power clipped.  Congress can begin to do that by thinking about the scope of delegated power they wish to give to the president. Post-Watergate there were some efforts to do that but over time they were undone.  One thing Joe Biden should think about is a longer-term plan to change the law to make it harder for executive orders to replace working with Congress to make law.  Governing by executive order only exacerbates the polarization of American politics and gives Congress a way out of having to make the policy choices they were elected to make.

The Ultimate Good Bye Donald Trump But I am Not Gone Forever Songbook Blog

 

            America is a partisanly-polarized political world.

   Donald Trump personifies this divide.  Republicans like him,  and with a powerful dose of cognitive dissonance and confirmation bias believe everything he says, whether it is about the pandemic, the economic, or his claims of voter fraud that elected Joe Biden as president.  Conversely, Democrats despise him and all that he represents,  accepting uncritically the evil of him as president and the virtue their side represents.

I describe it all the time in my talks and lectures, pointing to how we live in two worlds, separate and maybe equal in how we view the world.  We are divided over where we live, the news we watch, the stores we shop at or dine at, and the cars we drive or the clothes we wear.  Everything is partisan, every culture landmark, as Walter Benjamin prophesized, would be tainted with politics.

The same is true with music. Rick and roll, Country Western, Rap, and Hip-Hop are music genres, but also inhere political orientations and as Antonio Gramsci said, are part of the mass culture war for the hearts and minds of people.  Since the November 3, election and coming soon end of the Trump presidency, music has become the new culture war.  Songs have been enlisted to herald his departure and his future.  Much in the same way that the passing of Margaret Thatcher led to revival of “Ding Dong the Wicked Witch is Dead” in England,  Rolling Stone reported on the songs that have marked Trump’s electoral defeat.

This blog is the Ultimate Good Bye Donald  Trump But I am Not Gone Forever Songbook.  Yes, Trump supporters are in denial but he did lose fair and square, despite false claims of  fraud that the   courts have rejected.

There is something here for both Trump haters and admirers.  If nothing else, just enjoy the music and think of your own additions to the list (pardon the Youtube  ads).

Hit the Road Jack, Ray Charles.

Leaving on a Jet Plane,  Peter, Paul, and Mary

The  Thrill is Gone, B.B. King

Will You still Love me Tomorrow, Carole King

Hello, I must be Going, Groucho Marx

Breaking Up is Hard to  Do, Neil Sedaka (of course the slow version)

Who do you think you are, Mr. Big Stuff, Jean Knight

So Long, Farewell, Trapp Family Singers

50 Ways to Say Good Bye, Train

Na Na Na Na Hey Hey-ey Goodbye, The Band

I Will Survive, Gloria Gaynor

On the Road Again, Willie Nelson

Take This Job and Shove It, Johnny Paycheck

I Can See Clearly Now, Johnny Nash

We’re Not Going to take it, Twisted Sister

Celebrate, Three Dog, Night.

Havin’ A Party, Southside Johnny (with Bruce)

Happy Trails, Roy Rodgers and Dale Evans

 

For Trump supporters we close  with:

Goodbye Girl, David Gates

 

And last but not least

Last Dance, Donna Summer

 

 

 

The Ethical Obligation of Trump’s Legal Team to Give Up

 Donald Trump’s efforts to litigate himself to a second term are effectively done.  Hastening the end are

two things.  One, the reality that the voter fraud claims on which  he stakes his litigation strategy are baseless.  Two,  something that every first-year law student knows, the ethical and legal obligations of  (Trump’s) attorneys not to press arguments in court which are meritless or  frivolous.   This includes Rudy Giuliani as Trump’s legal manager.

There was never much of a chance Trump would succeed in overturning the presidential election results in court.  There was a fantasy that the legacy of Bush v. Gore that led to the Supreme Court handing Florida and the 2000 presidential race to George Bush would prevail again.  Yet that case was about varying standards to ascertain voter intent in an  election in one state where the margin between George Bush and Al Gore was simply a few hundred votes.  Bush’s legal term raised legitimate constitutional questions about Equal Protection and treating different voters differently.  Winning in court in that one state gave Bush the electoral votes he needed to win the presidency.

Here Trump is raising  questions about widespread voter fraud across multiple states where Joe Biden’s margin of victory is thousands if not tens of thousands of votes.  Trump would have to overturn election results in at least three states.

The basis of Trump’s arguments is not about voter intent but assertions of voter fraud and the counting of ballots.  Claims of voter fraud have been a Donald Trump mantra for years and also the basis of a partisan dispute over voting rights since at least Bush v. Gore.  Republicans are absolutely convinced there is widespread voter fraud in America and have made it part of their political rhetoric to motivate their base  and arguably to suppress voting,.  This is true even though  they have failed to produce an iota of credible evidence that widespread voter fraud exists and that it has affected the outcome of elections.

The Supreme Court in Crawford v. Marion County, 553 U.S. 181 (2008) gave credence to the voter fraud rhetoric when it upheld an Indiana voter identification law as a means to detect and deter voter fraud, even though the State conceded there it had no recorded and provable instance of such fraud in its entire history.  The Crawford case was a facial law suit that challenged the very validity of the ID law and therefore no evidence of fraud  needed to be produced by the State to win.

Election law suits are a different matter.  To successfully claim voter fraud, throw out votes,  or overturn election results one needs evidence.  Challengers carry the burden of proof and persuasion to show fraud—mere assertions are not enough.  In state and federal courts there are clear rules of evidence that define what is admissible, with mere hearsay, speculation, or rumor not enough.

Trump’s legal team is losing in court because it is unable to meet the legal evidentiary standards to prove fraud.  The rules are not stacked against the president and judges are not corrupt.  The problem is Trump does not have a legal case.  In many ways  his law suits regarding fraud are welcome—they finally put on trial claims of voter fraud that were untested in Crawford and judges are rejecting the arguments as baseless.  So are  many Republican officials who administer elections.  This should put to rest serious claims about voter fraud.

Trump’s lawyers may recognize the baselessness of the fraud claims and in recent days several legal teams have resigned, including in Pennsylvania.  They had to, possibility because they recognized that to press them further meant they could face disciplinary sanctions. 

Rule 11 of the Federal Rules of Civil Procedure bars attorneys from filing cases which are frivolous,  lacking evidentiary support, or which are meant simply to  “harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  If such litigation persists, courts may sanction attorneys.

Similarly Rule 3.1  of the Model Rules of Professional Conduct—the ethical code for lawyers—bars attorneys from bringing frivolous claims.  Every state has a version of Rule 3.1 and it imposes a sanctionable ethical obligation on attorneys that could potentially lead to disbarment.

Trump may make unfounded assertions of voter fraud and press them to the public. His attorneys cannot not.  Moreover, to the extent that Rudy Giuliani in managing Trump’s legal strategy is furthering frivolous assertions, he too could face  Rule 11 and Rule 3.1 sanctions.

Courts have been generous in letting Trump’s attorneys press their arguments and give them a hearing.  But they have failed to provide proof of fraud that will affect the outcome of the presidential election in even one state, let alone the multiple ones required to change the outcome of the election.  Attorneys’ ethical and legal obligations not to press meritless claims are now bringing a halt to the president’s legal strategy.

Can Trump Sue to Victory? The Math and Law are Beyond Unlikely

 By all accounts Joe Biden has won the US presidency.  It’s not official yet, but the math suggests he is

the president-elect.  Donald Trump refuses to concede, vowing to litigate and sue his way to victory and take his case to the Supreme Court where his three appointed Justices will deliver him a win.  This is Trump’s fantasy, as well as his supporters, and the fear of those who opposed him.  Is this scenario possible or likely?  Simply put, no–this is not Florida 2000 and Bush v Gore all over again.  Let us explore Trump’s case.

Technically Joe Biden has not yet won the presidency or any state yet.   The results in each state are not official yet.  There is a period after elections in the US where final counts are made and any errors are corrected.  This is normal.  During this period it is not unusual for small adjustments in vote counts to change.  Approximately two weeks after elections in each state a body called a canvassing board meets to certify the election results and eventually issue election certificates declaring winners.  This is when someone is officially the winner.  Up until this point candidates can make administrative challenges or recounts can occur.  Normally, only after the results have been certified can one go to court.

There are several hard date deadlines coming soon. Under federal law all disputes regarding  a state’s electoral votes need to be resolved by December 8.    This is so that if there is a challenge to them in Congress there is a presumption of validity for them.   This is the so-called safe harbor provision.  Federal law requires the electors to cast their ballots on December 14.    The Constitution requires Congress in a joint session on January 6, 2021, to certify the electoral vote count and her any challengers from members of Congress.  Finally, the Constitution says that the current term for the president expires at noon on January 20, 2021 when the new president takes overs.  Any litigation must respect these dates, with  it likely that any suits will need to be resolved by the December 8, deadline.

As on November 9, 2020, Joe Biden potentially has 279 electoral votes, nine more than the 270 needed to win the presidency.  This vote total includes Michigan (16), Nevada (6), Pennsylvania (20), and Wisconsin (10).  It does not include Arizona (11) and Georgia (16).  Biden is ahead in the latter two and likely to win both, pushing his total to 306 electoral votes.

For Trump to win he would need to then overturn 36 electoral votes, flipping at least three if not more states.

One way to do this is through a recount of votes.  Perhaps in demanding a recount in several states he can change the election outcome.  This is unlikely to succeed, especially in more than one state.  Ballot counting is highly accurate in the US, with statewide elections barely changing totals by more than a few hundred votes.  Biden’s margins of victory are sufficiently large enough in all these states that there is little chance they will change results.

The second alternative is the legal challenge route.  Individuals cannot sue in court just because they are mad.  They need to show a legal injury.  For Trump, there are several dubious legal arguments.

One, Trump will argue widespread voter fraud.  Trump has been arguing that such fraud exists for years but never has offered proof of it.  He did this before the election this year with allegations that vote by mail was rift with fraud.  He and his followers seem to insinuate that large numbers of dead, undocumented immigrants, or other persons vote.  If he has evidence of that his legal team needs to prove this in court.  So far lower courts have rejected claims of this and the evidence is overwhelming that there is no significant voter fraud of any type in America.  This belief in such is a defining legend for many Republicans.

But even if such fraud does exist, the president must prove it exists and to such an extent that  it affected the reliability and outcome of the election such that a new election is needed.  Rarely do judges order such an election because it is impossible to rerun an election, and that would especially be the case with a presidential election where there are strict time limits in place.  More likely, what Trump needs to show is that there was enough fraud that a large class of votes must be thrown out such that this number across several states will change the vote count.  This is an evidence issue and votes are not thrown out based on mere speculation or assertion.  In many cases, one needs to show  vote by vote why there is fraud.  Again, unlikely.

One argument being thrown out by Trump also is that votes received on or before election day which were cast by absentee ballot but not counted until after the election should not be counted.  The claim is that they violate the Federal Uniform Election law which requires the election to take place on a specific day (November 3, this year), and that any ballots counted after that date violate that federal law. This argument will fail.  States routinely count absentee ballots after election day.  Nothing in the federal law prohibits this.  Counting ballots received by election day are different from counting ballots received after election day and to which maybe the federal law applies, but Biden’s victory does not depend on these latter ballots.

Three, Trump has argued that his poll watchers or observers were denied access to viewing the ballot counting.  Lower courts have rejected that and upheld laws saying they must keep their distance from counters and do not have a right to lean over their shoulders.  This is to prevent intimidation.  These laws will be upheld.  But even if there is a violation here all that it will require is perhaps some recounting but it does not change the count.

Finally, Trump seems to claim some type of Bush v. Gore violation.  Bush v. Gore in 2000 was a constitutional Equal Protection violation in one state that involved the procedures for how to ascertain voter intent.  The case involved one state where the vote totals were only a few hundred apart.  The Court’s decision to halt the recount in 2000 was that it might go past the safe harbor provision.  It is hard to find a parallel Equal Protection violation here that would invoke Bush v Gore unless somehow one says that states are treating different classes of voters differently in ways that are constitutionally wrong.  This is a hard argument to make, especially across several states.  It would take a lot of legal maneuvering to get a case to the Supreme Court and it would take even more to do that to invalidate tens if not hundreds of thousands of votes across two or more states.  From a legal perspective, the chances here are impossible.

Maybe the real goal as some contend is for Trump to delay the electoral college votes from taking place in multiple states, and then throwing the election Congress as the Constitution provides.  Here is where Bush v. Gore may apply–the Supreme Court may simply do in litigation now as it did then to stop it before the December 8, safe harbor provision kicks in.  Despite fantasies and fears by  Republicans and Democrats, don’t count on congressional selection of Trump as president.

Overall, the president cannot litigate himself into a victory.  The math and law are against him.

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.