Black Swans, unknown unknowns, and October surprises

 Black Swans, unknown unknowns, and October surprises.  These are the names of factors that could change the course of the 2024 presidential election.  And we may not even know what they are

According to political scientists there are models that predict winners in presidential elections. These models generally look at presidential approval rating and public attitudes towards the economy in the second quarter of an election year.  We know this based on past or “normal” elections. However, the 2024 election cycle is like no other election cycle in American history. There are a whole host of black swans, unknown unknowns, and potential October surprises that could change the course of the election. These are variables that we have not seen previously in presidential elections or events whose course could evolve and change in ways to impact the election.

 

What might be some of these unknown unknowns?   Here are ten possibilities.

 

Will Trump stand trial and be convicted of any crimes before the 2024 election? Going into the election, Donald Trump faces four criminal trials and 91 criminal indictments. His base is with him. However, the battle is for those few swing voters in those five or six swing states that will decide the election.   It is perhaps less than 150,000 voters. Polls indicate that among those swing or independent voters, a Trump conviction could sway and alter their vote, perhaps throwing the election to Joe Biden. If and when those trials occur, we do not know and their timing could very well affect the election.

 

Will the US Supreme Court allow the use of the insurrection clause to remove Trump from the ballot? The insurrection clause was drafted to address problems following the Civil War and to keep members of the Confederacy from serving in office.  States such as Colorado as well as many others are trying to use the insurrection clause as a way of keeping Donald Trump off the ballot. The Supreme Court will shortly be deciding whether or not that clause can be used for that purpose.

 

How will the conflicts in the Middle East Ukraine and possibly tensions with China in North Korea impact the election?   Matters of foreign affairs are always unpredictable. We don't know at this point if the evolution of the Middle East conflict could drag the United States into a full blown war. We don't know how the future progress of a Russian Ukraine fight will evolve. And while the US is distracted by the Middle East and Ukraine, will China or North Korea use this as an opportunity to make moves on Taiwan or to extend their zone of influence in Asia? Any in all of these variables matters of war and peace could impact the election.

 

What will happen to inflation at the gas pump or the grocery store?  The economy is always one of the biggest variables in an election. Last year with inflation running high, presidential approval for Biden was sinking.  Right now, inflation seems to be subsiding. The economy is doing well. However, gas prices are going up again. Inflation has not brought down the price of groceries. Will Americans continue to be disgruntled about the economy? And how will it evolve over the next few months and especially in the closing days of the election? With that, how might international conflict especially in the Middle East also impact gas prices?

 

Will young people or people of color show up and vote in 2024?  People of color and young people (under the age of thirty) showed up to vote in record numbers in 2020. Biden needs that record turnout again to be able to win. He also needs women to show up and to vote for him much in the same way that they showed up for him in 2020 and how they showed up for Democrats in 2022.  Enthusiasm for Biden is not great. What motivated these voters four years ago was opposition to Trump.  Can Biden find a key to get these voters to show up and vote for him, especially in those critical swing states?

 

Will abortion continue to be a major issue, especially for college educated women in 2024? What college educated suburban women do determines the outcome of elections.  If they show up, Democrats do well if they stay home Republicans do well. These women stayed home in 2016. They showed up in 2018, 2020, and 2022. They showed up mostly concerned about reproductive rights issues and the Democrats did well. Will they be motivated this year to show up and vote and  will abortion still be the issue?

 

Will the border crisis change in 2024? Donald Trump is running on the issue of the border crisis. Biden's reelection could very well rest upon whether Congress reaches a deal on securing the southern border and on public’s perceptions regarding how well the Biden administration is addressing the immigration issue.

 

Will there be any Supreme Court decisions in 2024 that could impact the election? Back in 2022, it was abortion and the repeal of Roe vs. Wade that changed the trajectory of the midterm elections. Could there be a similar vote this year such as on presidential immunity from prosecution or  the insurrection clause? Or could there be some other Supreme Court vote that suddenly grips America's attention and mobilizes voters?

 

Will there be any health problems that impact the 2024 presidential candidates? Both Donald Trump and Joe Biden are elderly candidates. It is not inconceivable that health problems by one or both of them could impact the election. The recent special counsel report on Joe Biden painted a devastating picture of his mental health. But what if one or both of the candidates is taken ill and has to leave the race and has to be replaced. How might that affect the trajectory of the election?

 

What is the Taylor Swift impact? Could Taylor Swift influence the impact of the 2024 election by her decision to endorse Joe Biden? Would it be enough to motivate her supporters, younger women, many of them who don't otherwise vote, and could that change the course of the election, especially in those critical swing states?

 

Overall, any or all of these factors could be the black swans, the unknown unknowns, or the October surprise that changes the course of the presidential election in 2024. 

If the US Presidential Election were Held Today (Or Why Democrats Should be Beyond Worried)

 

Polls are not predictors.  They are merely snapshots of public opinion at a specific time. A lot can

change between now and the November 2024 US presidential election. But if the election were held today Donald Trump would beat Joe Biden in the electoral college and perhaps in the popular vote.

            There are many indications that Joe Biden is in deep trouble.  National  polls right now place him and Donald Trump in a tie, or with Trump with a slight lead.  But ignore all national polls.  We do not elect presidents either by national polls or a national popular vote.  All that matters is the electoral college and the race to get 270 electoral votes.

            But as I have written, not all fifty states are created equal.  Because of partisan demographics, population sorting, and the fact that forty-eight out of fifty states allocate their electoral votes on a winner-take-all basis, only a few swing states matter.  Within those few swing states perhaps only a few swing voters matter.  Back in 2015, I argued that there were only three numbers that mattered—10/10/270.  Ten percent of the voters in ten states would determine who would become president.  The reality was three swing states—Michigan, Pennsylvania, and Michigan decided the election.  Within those three states, shift 90,000 votes and Hilary Clinton would have been president. 

Four years later, factoring swing counties into the equation, the equation was 10/10/7/270.  Ten percent of the voters located in perhaps ten counties across seven states would decide the election.   In 2020 the election came down to Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.  But had 43,000 more individuals voted for Trump in Arizona, Georgia, and Wisconsin, he would have won reelection.

Now four years later the numbers to look at may be 5/5/5/270.  Five percent of the voters in five counties located in five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin—will decide the election, with Maricopa, Fulton, Wayne,  Allegheny, and Door counties deciding who gets to 270.

How has the presidential race come down to this?

Let us assume that Joe Biden and Donald Trump are the presidential nominees in 2024.  Assume that that each of them wins all the same states they won in 2020, and that they again split the states of Maine and Nebraska the way they did in 2020.  Assume also that Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin are the only swing states in 2024.  If the election were held today Trump would lead Biden in the electoral college 235 to 232.  This number reflects a shift in electoral votes after the 2020 census  that work to Trump’s benefit.  This leaves the above five swing states totally 71 undecided electoral votes.

Polls right now in  the five swing states show Biden leading in Michigan  and  Wisconsin (25 electoral votes) and Trump in the lead in Arizona, Georgia, and Pennsylvania (46 electoral votes). With the exception of Georgia where Trump according to the latest poll  has a nine point lead, all the margins  of victory are within the margin of error. This suggests that the races are really to close to call or could simply go either way.

Total up the safe states and swing states for each candidate.  Trump wins with 281 electoral votes to Biden’s 257.

The picture is bleak for Biden.  No sitting president has won re-election with approval ratings with what Biden now has.  Incumbents do badly when the public senses the country is moving in the wrong direction or when they perceive the economy is doing badly. This is the case now in the polls.

The public is worried about Biden’s age.  There is an enthusiasm gap comparing how Democrats feel about Biden compared to how Trump’s base feels about him.  Generally undecided voters break against the incumbent when they perceive things going badly in the country.

Add it all up—Biden is in serious trouble.

Biden and Democrats are hoping abortion saves them like in 2022. Or that the Trump legal problems and possible convictions will save them. These are tough bets to make.

Four years ago many viewed Biden as a one term transitional president who would pass the mantel on to a  new generation in 2024.  He still needs to do that.  There is a small window, perhaps just three to four months, that Biden has to decide to exit the race and leave room for another Democrat to emerge as the consensus candidate.

It is possible that Biden can still win. It is possible the polls are wrong or that they are not good predictors but simply snapshots in time.  One year is a political eternity.  Yet right now despite how bad a candidate Trump is with all his problems, there is no guarantee Biden  can win in 2024 and instead a good chance he will lose.

Trump is why the framers created the Electoral College

This blog originally appeared in The Hill. 

The possibility of a second Donald Trump presidency provides perhaps the strongest case ever for the Electoral College. Were the Electoral College to work as the Framers originally envisioned, there is no chance Trump would even be a serious candidate in 2024, let alone 2016 or 2020.

The Electoral College is perhaps the most maligned and misunderstood institution in American politics. There have been more efforts to alter or abolish it than any other institution, and polls suggest large percentages of the public support replacing it with a direct popular vote for president.

So why did the constitutional Framers create the Electoral College?

Historian James MacGregor Burns describes the U.S. in 1787, at the time of the drafting of the Constitution, as an experiment. It was an experiment in popular government. The world was full of monarchies, but nowhere did democracy exist or was there a government where the people could select their leaders.

As the constitutional Framers debated how to structure the new government, “fear” was the word of the day. Slave states feared the free; small states feared the larger ones. Everyone feared that if the new Constitution were framed wrong, they would lose. These disagreements led to the infamous three-fifths compromise, where slaves would count only as partial persons in determining population for congressional representation. Additionally, a recent uprising by farmers, known as Shay’s Rebellion, meant many at the convention feared that the people might not be capable or knowledgeable enough to vote.

When all this fear came to the presidency, the question was how to select that person. Alexander Hamilton originally proposed a president who would serve for life. While there was some talk of direct election of the president, there was little support for it. The less populous states worried that a direct popular vote would mean they would be dominated by states with more voters. The slave and free states each feared that the direct popular vote might work to their disadvantage. Thus the compromise — the Electoral College.

The idea was for the legislatures of each state to select electors who would be temporary, beholden to no one, with the sole duty of picking the president and vice-president. The presumption was these electors would be of sound judgment and character, and they would make the best choice for president. As Alexander wrote in Federalist No. 68: “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Similarly, James Madison worried that with direct elections, “The ministers of foreign powers would have and make use of the opportunity to mix their intrigues & influence with the election.” Pierce Butler, another constitutional framer, worried that the “two great evils to be avoided are cabal at home and influence abroad.” The Electoral College would address both.

This system was also defended as protecting the minority from the tyranny of the majority. A direct popular vote might result in small states or particular regions or interests being ignored. The Electoral College was, as political scientist Martin Diamond once argued, the check on populism that might go bad.

But partisan politics quickly undermined the original vision of the Electoral College, as each state sought to control its electors and how they would be selected. In the early nineteenth century, as the spirit of democracy spread, legislatures gradually let the people vote to select the electors. Later on, states changed their laws to allow for each qualifying candidate to designate their own slate of electors, with popular elections determining whose slate was entitled to cast the electoral votes. Finally, fearing that the electors might not vote as the people decided, “faithless electors” laws were enacted to compel them to vote the way the popular vote went. The Supreme Court upheld such laws in Colorado Department of State v. Baca.

Changing notions of what democracy means have led to erosion in support for the Electoral College. Five times in American history — 1824, 1876, 1888, 2000, and 2016 — the winner of the national popular vote lost the presidency to the winner of the Electoral College. Many Americans saw this as undemocratic and urged that the Electoral College should go. One alternative is the National Popular Vote, a compact for states to cast their electoral votes for whichever candidate wins the national popular vote.

Now enter Donald Trump. Twice impeached, although not convicted; allegedly the beneficiary of Russian interference in 2016; now facing two indictments, with more possibly coming; already held liable for sexual harassment, and facing many other lawsuits. He is implicated in the January 6 attack on the Capitol and expresses no remorse for his behavior. By one count, he lied more than 20,000 times in office.

Yet Trump’s base is with him. He is the odds-on favorite to win the GOP nomination and perhaps the presidency again. For the first time, America could have a convicted felon as president.

Our constitutional framers would have declared him unfit to be president. Were the Electoral College operating how they had originally intended, there is no way Trump would now be a viable candidate for president. Perhaps the prospect of a second Trump presidency is the best argument one can offer for retaining the Electoral College.

Trump, Trumpism, and the Future of American Politics

 

               By the end of this week  Donald Trump will have had the worst seven days of his presidency.

  The only week that will be worse is when Joe Biden is sworn in as president, he issues several executive orders overturning those of  Trump, and when lacking presidential  immunities, he faces possible federal and state prosecution for many of his actions as president and from before.

Personally, Trump will be repudiated numerous times legally and politically by this Friday, yet despite his defeats, it is not obvious that Trumpism is dead and that it has been exorcised from the Republican Party.

            Part of Donald Trump’s attraction to so many was his antiestablishmentism.  In 2016  he ran against the Republican Party and Washington and won.   This antiestablishmentism, along with  white identity resentment politics, US  hyper-nationalism, and  anti-immigration, are the core of Trumpism. Yet this Trumpism, while politically enduring to many, was his undoing from a public policy  and legal perspective.  He passed little legislation in Congress and suffered one of the worst records in court regarding his efforts to change administrative rules regarding the environment, immigration, and other areas of regulation.  Now as his presidency is closing, the establishment he railed against is abandoning him.

            Consider first the two major legislative defeats he suffered in the closing days of  2020.  One, after demanding that the pandemic stimulus bill increase relief checks from $600 to $2,000 and threatening to veto it, he signed it and got nothing.  Two, Congress for the first time with Trump overrode his veto of the defense bill.  Both were victories for process and institutionalism.

            Second,  as the Washington Post first reported, Donald Trump unsuccessfully  sought to convince Georgia election officials to commit voter fraud in order to flip the electoral votes in that state.  His failure is a victory for electoral integrity, the law, and claims about voter fraud that have left him with a 1-59 record since election day.  Again, a victory for the law, the competence of civil servants, and the establishment.

            Three, polls suggest that Democrats have a better than even chance of winning the two US  Senate seats in Georgia on January 5.  If that happens it will flip that chamber to the Democrats.  Were that to happen it will be because of  the repudiation of Trump in that state and a failed effort to sway the elections there.

            Four, on January 6, a joint-session of Congress will meet, presided over by Vice-President Pence, to count the electoral votes.  Pence has effectively abandoned Trump.  He already challenged a lawsuit that sought to give him the authority to reject electoral votes.  He will eventually declare Joe Biden the winner of the 2020 presidential election, despite the fact that many members of his party will challenge the electoral vote count and lose.  A victory for process and the law.

            Donald Trump the person will continue to diminish as a political figure.  After January  20, he will face possible New York State lawsuits for tax and bank fraud.  There will be pressure to change him with other violations of the law, both at the federal and state level.

            Trump was always his own worst enemy.   He thought he could do whatever he wanted and while enabled by many, he proved unable to make the profound  changes his supporters hoped and his distractors feared.  His losses were a vindication, for good or bad, of the strength of the American political system.  Many claim that his current  rants about voter fraud and efforts to threaten a state election official are bad for democracy.  They are, but America will survive.  He will no longer be president and the country will move on.

            Yet despite the repudiation of Trump as a person, Trumpism lives on.  His persona’s grip on the Republican Party remains strong.  Yet the Party is divided between those who wish to claim the mantle of Trumpism such as Ted Cruz as he thinks about a 2024 presidential run, and those such as Mitch McConnell and Mitt Romney who see a different direction for it.  The issue is about reform and moving on beyond Trump.

            In 2012 after Mitt Romney lost the presidency to Barack Obama the Republican Party did a study, concluding that it needed to evolve if it wished to have a future.  It  needed to attract women and people of color.  Trump’s takeover of the party forestalled that change.  The Republicans are now back to where they were in 2012.  The question now is whether the Party, like America, can move beyond not just Donald Trump but Trumpism.

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.

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.

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.

The Pornofication of the 2020 Election

 American democracy  is threatened, but not for the reasons  depicted in recent election law porn. 

Donald Trump’s comments about mail-in-voting being rift with fraud or his refusal to respect a peaceful transition of power if he loses, while troubling, are merely a symptom of deeper  problems plaguing American democracy.

            Election law porn is the journalistic de jour theme of the corporate media now.  Recent articles in The Atlantic and The Guardian describe the 2020 elections as make or break for American democracy.  The New York Times and the Washington Post writers decry Trump’s threat to the United States and how he plans to steal an election.  Other articles tell of plots by Republican state legislatures to take away the popular vote and directly award the electoral votes to Trump.  All of these stories appeal to the fear, paranoia, and conspiratorial insecurities of Democrats, looking for reasons why Trump will win and Biden lose.  These articles represent bad journalism but are good clickbait business—they get readers to look at them, titillating their anger and arousing angst.  They are election law porn meant to hook readers.

These articles first feed into the Trump narrative.  For nearly five years the corporate media has profited over coverage of  Trump.  It gave him undue $5 billion free media coverage in 2015-2016 because it was profitable to do so.  It continues to cover ever one of his Tweets and statements he makes even though the mainstream media such as the Washington Post acknowledges that the president is a serial liar. His lies are brilliant diversions that set the political agenda.  Criticize the president about his handling of the pandemic and he talks of fraudulent vote by mail.  Ask him about health care and he will talk about not accepting  the results of an election or agreeing to a peaceful transition of power if he loses.  Simultaneously the press and the public—mostly Democrats—take every word he utters as a lie and as literal truth.  Take a lot of what he says, as Hermann and Chomsky declared in Manufacturing Consent, as part of a propaganda machinery in a symbiotic relationship between him and the corporate media where the latter takes what the former says and delivers it in a way to sell news and divert the public from the real problems.  Here the real problem is what is wrong with American democracy.

As noted above, among the more recent manifestations of election law porn is that Republican legislatures will force delays in vote counts or otherwise take actions to directly award electoral votes to Donald Trump as a way to ensure his victory.  Great conspiracy, thin reality.

The Constitution does ultimately allow state legislatures to pick the electors who pick the president.  Our popular votes for president to select the electors are a product of state law which theoretically can be changed.  Yet in reality it would be difficult and probably not make a difference. According to Ballotpedia, there are 36 states where one party has a trifecta where it controls both houses of the legislature and the governor’s office.  Of those 36, Democrats have 15 trifectas, Republicans 21.  Of those 21 states, only two—Florida and Arizona, are swing states where Joe Biden has a chance to win.  Perhaps maybe three if Ohio is still a swing state. The remainder of the states where Republicans hold a trifecta are ones Trump is going to win anyhow.  Of the real swing states in play—Michigan, Minnesota, North Carolina, Pennsylvania, and Wisconsin, there is no trifecta and therefore Republicans could not change the law to pick the electors.  If Biden loses the election by losing in these swing states  it is plausible  he will do so simply because he ran a lackluster campaign  or the voting demographics in these states were against him.

Yes, there are additional and legitimate fears that this election will be close and  in some states there will be allegations of vote tampering and miscounts.  One should not minimize these as issues, but again they are diversions away from the more systematic and deeper problems facing  American democracy.

The United States is a troubled democracy.  Even before Donald Trump it faced problems.  Its gap between the rich and poor is among the highest compared to other western-style democracies with wealth and income concentrating into fewer and fewer hands..  It has a troubled legacy and history of race that goes back to the settlement and founding of the country.  The criminal justice, education, and health care systems  reveal huge racial disparities.  The death of George Floyd and the causalities of the pandemic are   reminders of this.

America has the lowest voter turnout among its peers, with the electorate stratified by race and income.  Its neo-liberal style election system has reduced democracy down to the right of the few wealthy donors to spend unlimited money to influence elections.  Corporate interests spend billions to lobby, and  the 50-state patchwork of election rules and eligibility requirements have already  disenfranchised millions.  All of this occurred before Donald Trump and perhaps made his election possible.

Donald Trump is a product of an American democracy that was failing before he was elected.  The 2020 elections have brought home those failures,  but even if Biden were to win the problems will not go away because they are more than about Donald Trump.  His policies have exacerbated a challenged democracy and perhaps made them worse, but the root of them is deeper than him and it will take more than a Biden victory or hand wringing sensationalism by election law porn to fix them.

 

If the US Presidential Election Were Held Today

If the US presidential election were held today polls suggest Joe Biden would be elected.  Not only would it be a landslide popular vote victory but he would win a clear electoral college decision.  Right now the Economist gives  Joe Biden a 93% chance of winning.

            But the election is not today.  It is still nearly four months out.   Surveys or polls are not predictions, they are snapshots in time and are no guarantee of the future.  Additionally, national polls are worthless when it comes to presidential elections.  It is not that they are usually wrong—they did predict Hillary Clinton would win by about two percentage points in 2016 and she did.  But instead the road to the White House is through the electoral college and the only polls that really matter if at all are the ones in the critical swing states they will decide the election.  What happens in Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin is a lot more important than what happens in California, New York, or Alabama.  Despite how much Democrats are salivating, realistically Georgia and Texas, while competitive, are not swing states. At best, forcing Trump to defend these states means less resources for the states really in play.  For Democrats, don’t repeat the mistakes of 2016 and campaign where there is no realistic prospect of winning. 

A lot can happen between now and election days, with it then either being November 3, 2020 (actual election day) or in the case of some states such as Minnesota, when as early as September 19, 2020 early voting  takes place.  Approximately 38 states allow some absentee or early voting, complicating predictions because ballots are being cast over a period of many days or weeks.

Political scientists develop models to predict presidential elections.  Central to the models are presidential approval and national economic performance several months before the election.  Based on these variables Donald Trump should lose.  But these models too are flawed in that they overlook the finery of the swing states and the electoral college and they also seem to ignore the fact that campaigns really matter.   Hillary Clinton should have won  four years ago but ran a lousy  campaign.  In 1988 Michael Dukakis at one time had a 17-point lead over George Bush but lost because of bad campaigning, complacency, and race-baiting  (remember Willie Horton) by the latter.

The point is that four months until November 3, is an eternity.  Four months ago, was mid-March, just before the pandemic  kicked in.  The US economy was at 4.4% unemployment for March, up from 3.5% in February.  Joe Biden was struggling to shake off Bernie Sanders for the Democratic Party nomination and it still looked like Trump was favored to win re-election.  The major issue—beyond Trump himself—was the fallout from the Senate trial and failed impeachment.

Since then everything and nothing has changed.  By that, this election was always going to be about Trump.  Unlike in 2016 where the election was a referendum on Hillary Clinton and she lost because people did not like her, in 2018 and now in 2020 the election is a referendum on Trump.  The pandemic and the economy have and have not changed that.  Yes, they have changed  the election  in that they are now issues and voters are judging Trump on how he is handling both. Evidence suggests his mishandling of them are impacting some support among his base. But they have changed nothing in the sense they both issues are merely surrogates for how voters think or feel about  Trump.

Think about it.  It has taken double-digit unemployment, a record crash of the economy, and 3,500,000 infections and 138,000 deaths to change the political dynamics of the 2020 presidential election.  Without the pandemic and the collateral damage, it has impacted on the economy, Biden might have had little chance of winning. Even  now, while the models say Trump will certainly lose, variables such as  changes in the economy, a lull in the pandemic, a horrible Biden campaign, or a ramped-up on steroids racial appeal by Trump that makes Willie Horton look tame.  And Democratic Party control of the Senate is not certain.

It takes a lot to defeat a sitting president.  Bush lost in 1992 because of a three-way split in the vote with Ross Perot running as a strong third-party candidate.  Prior to that, Jimmy Carter in 1980 lost to Ronald Reagan and in 1976 Carter defeated Gerald Ford.  In both those cases sitting incumbents lost because of extraordinary circumstances (1980 it was  the Iran Hostage crisis and oil embargo and in 1976 the Watergate backlash the pardoning of Richard Nixon). Prior to that it was in 1932 the last time a sitting presidential lost in a general election and that was when the Great Depression brought down Herbert Hoover to Franklin Roosevelt.  Only five incumbents have failed to win a second term.

            Trump is highly vulnerable but this is an extraordinary election.  Partisanship or polarization is so high it is, as noted, taking a national emergency a catastrophe to even begin to melt his base.  Voting in the age of Covid-19 might produce  distorted results that could change the election.  Already the litigation and court fights over early voting or voting rights portend how fragile franchise rights are and how the Supreme Court may impact how the 2020 elections are held.

            If the 2020 presidential election were held today arguably Joe Biden would win.  But it is not being held today and if history tells  us anything, a lot can still change, especially at the electoral college level, between now and November 3.