Why the "Just Vote" Response to the Trump-Inspired Constitutional Crisis Does Not Work

On Monday, I wrote about the Robert Kagan piece appearing in the Washington Post in which the conservative scholar warned that the nation is already in a constitutional crisis as Trump is laying the groundwork to steal the 2024 election by changing the rules and positioning his supporters to control the vote counting and certification process.

There have been a number of thoughtful responses to the piece, some supporting Kagan's warnings, others saying his concerns are overblown.  A response that falls into the latter category was penned by Jack Shafer, Politico's senior media writer:

Jack Shafer, Politico

The Kagan nightmare scenario has triggered a large spasm of liberal panic since his essay published, driven partly by understandable worry about the fragility of our democracy, but also an undercurrent of powerlessness—as though Trump could, almost by waving his hand, reassert control of the country.

But there’s another way to look at it. Is this nightmare scenario really a function of Trump’s power and his dominance over his party? Or do the extra-Constitutional methods Trump might adopt as we enter the 2024 election penumbra reflect his essential weakness, and the continued decay of Republican power? Are we looking at a player holding a set of superior cards or a weak-hand bluff artist threatening to blow up the casino unless he wins the pot?

...

The only person or party that attempts a coup d’etat is the one that cannot win by other means. Gearing up for a coup—which we can concede that Kagan gets right about Trump—is not a sign of political strength but one of political weakness. By signaling an attempt to regain power by any means necessary, Trump essentially confesses that Trumpism is not and is not likely to become a majoritarian movement.

The problem with Shafer's analysis is the underlying premise that the matter will ultimately be governed through democratic processes, with a majority of voters deciding the election at the voting booth.  Indeed, in his last paragraph he urges readers to "keep [their] cool and just vote."  

Kagan almost certainly would agree with Shafer that that Trump's autocratic maneuvering reflects political weakness.  But isn't that the point?  Trump is trying to seize control of those counting the votes exactly because he knows the voters are unlikely to give him a win at the polls.  Shafer is merely supplying the motive, not contradicting Kagan's thesis.

"Indeed you won the elections, but I won the count." 
--Nicaraguan dictator Anastasio Somoza

Indeed.  Trump is not a smart man, but he even he understands Somoza's approach to elections.

Evaluating Cook Political Report's Ratings of Senate Candidates

I decided to take a look at how the Cook Political Report is currently handicapping the 2022 U.S. Senate races.  Cook puts the seats that are up in seven categories:

Solid D
Likely D
Lean D
Toss Up
Lean R
Likely R
Solid R

Next year, 34 U.S. Senate seats are up.  Of those, 14 are currently held by a Democrat.  Cook puts 9 of those races in the "Solid D" category.  I can't quibble with any of the rankings.  I would note that Senator Chuck Schumer might face a strong opponent on the left in the primary.  But regardless of who wins that contest, Democrats are almost certain to easily win the Empire State in the general election.

Cook lists four Democratic seats as "Lean D."  (None are listed in the "Likely D" category.)  They are Mark Kelly of Arizona, Raphael Warnock of Georgia, Maggie Hassan of New Hampshire and Catherine Cortez Masto of Nevada.  

The Arizona and Georgia races should be the best shot for Republicans. But it looks like both states are going to feature competitive primaries with the Trumpiest candidate the likely winner.  In Georgia, former President Trump has already endorsed former football star Herschel Walker who is saddled with considerable baggage.  That gives the Democrats the edge in those states.  

Republicans might have the best chance for wins in more Democratic Nevada and New Hampshire.   In Nevada, former Attorney General Adam Laxalt has already announced he's running and has been endorsed by Trump.  In New Hampshire, current Republican Governor Chris Sununu is considering running as is former Senator Kelly Ayotte, who narrowly lost to Hassan in 2016.  Both would be strong opponents against a relatively weak incumbent.

As far as the Republican seats go, Cook lists 15 as "Solid R."  I do have a big gripe with one of them.  Senator Grassley of Iowa just announced he's running again.  At election time, Grassley will be 89 years old.  Age has been an obstacle for President Biden, and he's 11 years younger.  Iowa can be a competitive state, especially in an off-year election.  Former Iowa Congresswoman Abby Finkenauer has already announced she's running on the Democratic side.  Finkenauer has a history of running and winning against Republican incumbents.  Grassley's seat should be moved over two categories to Lean R.  It is likely to be very competitive.

Cook doesn't list any Republican seats in the "Likely R" category.  Into the "Lean R" category, Cook places Florida Senator Marco Rubio and the open seat seat in Ohio.  Given how the Ohio primary is going, which seems a race to see who can be the most extreme, I would agree with the "Lean R" classification of the race in that state.  Given Rubio's strength in South Florida, where Democrats need to win big, I think his race is less competitive than Cook projects.  I would make that race "Likely R."

Cook lists three Republican seats as tossups - the open Senate seats in North Carolina and Pennsylvania and the seat held by Wisconsin Senator Ron Johnson.  '

In North Carolina, Trump endorsed Congressman Ted Budd who is facing off in the GOP primary against former Governor Pat McCrory.  I think the seat should be labeled as a Lean R state though a fight between Budd and McCrory could well prove Cook is right in calling it a Toss Up state.

I don't buy Pennsylvania is a tossup.  Democrats have two strong candidates while Republicans are struggling to find a viable candidate to replace the popular Pat Toomey.  Pennsylvania, with the exception of 2016, tends to go Democratic statewide.  It's a Lean D state, maybe even a Likely D state once it is more clear who survives the primary.

If Johnson announces he's running for re-election in Wisconsin, I'd put that state in the Lean D category.  Maybe even Likely D.   With his embrace of conspiracy theories, Johnson has marginalized himself too much in a competitive state.  Wisconsin Republicans would be far better off with a different nominee, even though that person will start off with far less name ID.   Only if  Johnson bows out do I agree the Wisconsin seat is a tossup.

America is Already in a Constitutional Crisis, Conservative Scholar Warns

Robert Kagan, a co-founder of the Project for the New American Century and a senior fellow at the Brookings Institute, who serves on the Council on Foreign Relations, penned a column for the Washington Post last week which sounded the alarm about the next election:

The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves. The warning signs may be obscured by the distractions of politics, the pandemic, the economy and global crises, and by wishful thinking and denial. But about these things there should be no doubt: 

Robert Kagan

First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest; and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running. 

Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump’s charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way. Some Republican candidates have already begun preparing to declare fraud in 2022, just as Larry Elder tried meekly to do in the California recall contest. 

Meanwhile, the amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office. Republican legislatures are giving themselves greater control over the election certification process. As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature. An Arizona bill flatly states that the legislature may “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by a simple majority vote. Some state legislatures seek to impose criminal penalties on local election officials alleged to have committed “technical infractions,” including obstructing the view of poll watchers. 

The stage is thus being set for chaos. Imagine weeks of competing mass protests across multiple states as lawmakers from both parties claim victory and charge the other with unconstitutional efforts to take power. Partisans on both sides are likely to be better armed and more willing to inflict harm than they were in 2020. Would governors call out the National Guard? Would President Biden nationalize the Guard and place it under his control, invoke the Insurrection Act, and send troops into Pennsylvania or Texas or Wisconsin to quell violent protests? Deploying federal power in the states would be decried as tyranny. Biden would find himself where other presidents have been — where Andrew Jackson was during the nullification crisis, or where Abraham Lincoln was after the South seceded — navigating without rules or precedents, making his own judgments about what constitutional powers he does and doesn’t have. 

Today’s arguments over the filibuster will seem quaint in three years if the American political system enters a crisis for which the Constitution offers no remedy.

Most Americans — and all but a handful of politicians — have refused to take this possibility seriously enough to try to prevent it. As has so often been the case in other countries where fascist leaders arise, their would-be opponents are paralyzed in confusion and amazement at this charismatic authoritarian. They have followed the standard model of appeasement, which always begins with underestimation. The political and intellectual establishments in both parties have been underestimating Trump since he emerged on the scene in 2015. They underestimated the extent of his popularity and the strength of his hold on his followers; they underestimated his ability to take control of the Republican Party; and then they underestimated how far he was willing to go to retain power. The fact that he failed to overturn the 2020 election has reassured many that the American system remains secure, though it easily could have gone the other way — if Biden had not been safely ahead in all four states where the vote was close; if Trump had been more competent and more in control of the decision-makers in his administration, Congress and the states. As it was, Trump came close to bringing off a coup earlier this year. All that prevented it was a handful of state officials with notable courage and integrity, and the reluctance of two attorneys general and a vice president to obey orders they deemed inappropriate. 

These were not the checks and balances the Framers had in mind when they designed the Constitution, of course, but Trump has exposed the inadequacy of those protections. The Founders did not foresee the Trump phenomenon, in part because they did not foresee national parties. They anticipated the threat of a demagogue, but not of a national cult of personality. They assumed that the new republic’s vast expanse and the historic divisions among the 13 fiercely independent states would pose insuperable barriers to national movements based on party or personality. “Petty” demagogues might sway their own states, where they were known and had influence, but not the whole nation with its diverse populations and divergent interests.

Such checks and balances as the Framers put in place, therefore, depended on the separation of the three branches of government, each of which, they believed, would zealously guard its own power and prerogatives. The Framers did not establish safeguards against the possibility that national-party solidarity would transcend state boundaries because they did not imagine such a thing was possible. Nor did they foresee that members of Congress, and perhaps members of the judicial branch, too, would refuse to check the power of a president from their own party.

In recent decades, however, party loyalty has superseded branch loyalty, and never more so than in the Trump era. As the two Trump impeachments showed, if members of Congress are willing to defend or ignore the president’s actions simply because he is their party leader, then conviction and removal become all but impossible. In such circumstances, the Framers left no other check against usurpation by the executive — except (small-r) republican virtue.

The editorial goes on, at length, to discuss why people became attracted to Trump and discounts the notation that Trumpism is just a natural outgrowth of Reaganism.  Kagan points out that many of Trump's supporters are not traditional conservatives but rather independents and former Democrats.   That too has been my observation.  I cringe when media types treat Trumpism as a triumph of the far right of the GOP.  Trump's biggest critics are often conservative intellectuals while some of Trump's biggest supporters are those more moderate Republicans who often rebelled at the more conservative agenda items of Reagan's GOP.  

I don't agree with Kagan that it is a fait accompli that Donald Trump runs for election in 2024.  Former Trump attorney Michael Cohen recently told Business Insider that Trump is bluffing about running in 2024, that it is just a ruse to gain attention and money.  Cohen said that Trump will go right up to the starting line, then make an excuse as to why he cannot run because he doesn't want to be a two time loser.  

That has always been my belief.  But that belief is premised on the notion that the rules governing the 2024 election would be like 2020.   Trump is highly unlikely to win at the ballot box in 2024.  Certainly he would lose the nationwide popular vote, probably by a bigger margin last time. And he will likely lose the popular votes in enough states to, on paper, hand the electoral vote to his Democratic opponent.  

But my premise that the 2024 election rules, and those enforcing the rules, will be like 2020 might be wrong.   Trump can lose the election at the ballot box and still win the election if he can control the people counting and certifying the vote.  As Kagan notes, the Trump people have been busy laying the groundwork necessary to accomplish that.  The claim of nationwide fraud in the 2020 campaign is not about reinstating Trump but establishing the predicate for Trump forces to overturn the will of the people in 2024.  To do that, Trump and his minions are busy changing the rules and ridding the party of the honest Republicans who refused to go along with the attempt by Trump to steal the 2020 election.    Democrats didn't stop Trump's post-election coup.  Honest Republicans did.  

As Mr. Kagan illustrates, we are already in a constitutional crisis.   We need to start acting like it.

OOP's short takes:

• The Cyber Ninjas "audit" showed Trump lost won Maricopa County and, thus Arizona, by a larger margin than what was officially reported.   So how did Trump handle that disappointment?  By declaring at a Georgia rally that he "won" the audit.
• Trump also said at the rally that failed 2018 Democrat Stacey Abrams would be a better governor than incumbent Republican Governor Brian Kemp.  Abrams lost the gubernatorial election to Kemp in 2018 and there may be a rematch in 2022.  (Although I personally doubt Abrams runs...at least for Governor.  She has national ambitions.)  
• Trump probably feels a kinship with Abrams. They both are sore losers.   Trump lost Georgia and refused to concede, claiming their was, without proof, "election fraud" which prevented his victory.  Abrams lost Georgia by 3 times what Trump did, and refused to concede, claiming, without proof, that "voter suppression" was at such a high level (during a record turnout election, no less) that she was denied a victory. 
• Most members of the media, rightly, point out Trump's Georgia claims are without merit, while, wrongly, praising Abrams for making her unsupported claims.  In reality, Trump and Abrams are birds of a feather.  It only stands to reason that they should flock together.

Indiana Does Not Have the Most Gerrymandered State Legislative Districts

People in Indiana often complain that their legislature is "the worst."  I actually researched the issue a few years ago and found that residents of other states say the same thing about their state's legislature.  So the description of the Indiana General Assembly by Hoosier critics is not really unusual or necessarily accurate.

Now that the states have their decennial census data, they are drawing new boundary lines for their legislative and congressional districts.  In most states, this is a partisan process, done by the state legislature.  Indiana Republicans just released their proposed maps.  It did not take long for the allegations to start that Indiana GOP leaders have drawn the most gerrymandered legislative districts in the country.  

But is that claim, like the claim Indiana's legislature is "the worst," an embellishment?  Almost certainly.

It is hard to know how gerrymandered a map is given the difficulty in obtaining election result data on a precinct-by-precinct basis and assigning that information to the newly drawn districts.  Plus, Indiana was one of the first states to develop proposed districts.  So it is hard to compare Indiana's map to other states' 2020 census legislative maps, since most do not exist yet.

But there have been extensive studies of the 2010 census state legislative maps, including a study titled "The Worst Partisan Gerrymanders in U.S. State Legislatures" issued by the USC Schwarzenegger Institute for State and Global Policy prior to the 2020 election.   The report concluded that the top 11 states with worst "legislative partisan gerrymandering" are:

1.  Virginia
2.  Wisconsin
3.  Pennsylvania
4.  Michigan
5.  North Carolina
6.  Ohio 
7.  Nevada
8.  Arkansas & Oklahoma
9.  Kentucky
10.  Tennessee

(Notably the report calls this a top 10 list, but actually 11 states are listed.)

As one can see, Indiana does not crack the top 11.  For the record, maps drawn by Republican legislators have resulted in the GOP having huge majorities in the Indiana House (71-29) and the Senate (39-11) as of the 2020 elections.  Indiana Republicans did pick up four House seats in the last election.

In analyzing the data, the Schwarzenegger Report (I'm going to call it that for simplicity's sake) compared statewide Republican and Democratic state legislative vote versus seats the party won.  The Report found that there were a handful of states which had "minority rule," the party which had a minority of the statewide legislative vote had a majority of legislators elected in the upper (Senate) and/or lower (House) legislative chambers.  Those states are:

Table 1: Minority Rule in U.S. State Legislative Lower Chambers 

State	Statewide popular vote for governing party in 2018 (%)	Party’s seats in the state house after 2018 (%)
Virginia	44.5%	51.0%
Wisconsin	44.7%	64.6%
Pennsylvania	45.6%	54.2%
Michigan	47.4%	52.7%
North Carolina	48.2%	54.2%

           

Table 2: Minority Rule in U.S. State Legislative Upper Chambers 

State	Statewide popular vote for governing party in 2018 (%)	Party’s seats in the state house after 2018 (%)
Pennsylvania	45.5%	52.0%
Ohio	47.2%	58.8%
Michigan	47.8%	57.9%
North Carolina	44.9%	58.0%

Notably these are all states in which Republicans go from minority party to majority via redistricting.  Until fairly recently, Indiana was an anomaly.  The Democrats drew the Indiana House maps in 1990 and 2000 and won a majority in the House in most elections utilizing those maps.

The Schwarzenneger Report also looked at states in which the party controlling redistricting excessively increased its margin during redistricting.

Table 3:  Worst state house legislative gerrymanders, disproportional seats relative to votes

State	Statewide popular vote for governing party in 2018 (%)	Party’s seats in the state house after 2018 (%)
Nevada	51.3%	69.0%   (+17.7 D)
Wisconsin	44.7%	64.6%   (+19.9 R)
Arkansas	58.5%	76.0%   (+17.5 R)
Oklahoma	58.9%	76.2%   (+17.3 R)

Table 4:  Worst state senate legislative gerrymanders, disproportional seats relative to votes

State	Statewide popular vote for governing party in 2018 (%)	Party’s seats in the state house after 2018 (%)
Kentucky	57.9%	89.5%   (+31.6 R)
Tennessee	58.9%	77.8%   (+18.9 R)

It is doubtful that given how well Indiana Republicans have done under the 2010 maps that the 2020 maps could be more gerrymandered in the party's favor.  The number one priority in partisan redistricting is not gaining more seats, but incumbency protection.  Cutting incumbents' comfortable winning margins to create more districts favoring the party drawing the lines forces those incumbents into competitive races they would like to avoid.  Most likely Indiana's 2020 maps are more about shoring up the numbers in Republican members 'districts rather than creating more GOP districts.  

Probably the best example of this is the 1st congressional district, which last election was won by the Democrat Frank Mrvan with just over 56% of the vote.  Indiana Republicans could have fairly easily shifted lines around and made the district a marginally Republican one.  But to do so would have meant taking GOP votes away from neighboring districts, giving those Republican members of Congress  tougher re-election battles.  As a result, Mrvan gets to keep his Democratic-leaning district.

Finally, it should be noted that having commissions, instead of partisan legislators, draw district lines does not mean the districts are more going to more closely reflect the partisan breakdown of a particular state.  The most extreme example of lopsided numbers is in Hawaii.  In 2020, Democrat Joe Biden received 63.7% of the Hawaiian vote.  Democrats though control the Hawaiian House of Representatives 47-4 (92.1%) and the Senate 24-1 (96%).  A bipartisan commission, with members appointed by Democratic and Republican legislative leaders, drew the Hawaiian maps.

New Woodward Book Highlights Trump's Plan to Steal 2020 Election

One of the things you learn about Donald Trump is that whatever he accuses the other side of, he does so because he's guilty of the very same thing.  After the 2020 election, Trump accused Democrats of "stealing" the election via election fraud.  Trump and his crack legal team of Larry, Moe and Curly, however, could never actually produce any evidence of that fraud.  But the allegation of a stolen election did divert attention from the fact that Trump and his supporters were working behind the scenes post-election to steal Biden's victory at the polls.

A new book by Bob Woodward, Peril, details Trump's attempt to overturn the election results.

Part of the Trump Team's strategy was the work of "constitutional scholar" John Eastman who drafted a memorandum in which he laid out a plan by which the Vice President of the United States could exercise absolute, unquestioned authority over deciding who won the election.   Eastman's memo, in full, is set out below:

PRIVILEGED AND CONFIDENTIAL 

January 6 scenario 

7 states have transmitted dual slates of electors to the President of the Senate. 

The 12th Amendment merely provides that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch. The Electoral Count Act, which is likely unconstitutional, provides: 

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. 

This is the piece that we believe is unconstitutional. It allows the two houses, “acting separately,” to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the “executive” of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures. 

So here’s the scenario we propose: 

1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required). 

2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act. 

3. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment -- is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected. 

4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well. 

5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so. 

6. The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position -- that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind

Of course, Eastman cites no legal authority to support his conclusion.  But there is vagueness in the Constitution and Electoral Count Act (an 1887 federal statute which attempts to add more detail to the process involved in counting and certifying electoral votes) which allows jokers like Eastman to make nonsensical suggestions like the VP is the absolute arbiter of who wins a presidential election.  

Eastman's memo isn't about law.  Rather it is about using the office of the Vice Presidency to steal an election. Eastman clearly understands that once Vice President Pence handed the election to Trump, regardless of whether it was legal to do so, it would be hard to un-ring the bell.  Notably, the process Eastman suggests cuts the Democratic-dominated House out of the process of certifying electoral votes, in favor of the VP doing so.  The House's only role, if it came to that, would be voting by delegation for the President.  Since Republicans hold majorities in 26 of the 50 House delegations, Eastman knew Trump would win.

Fast forward.  Republicans in 2022 regain the House and have a narrow majority in the Senate.  Republicans had a good election in 2022 and control the legislatures in swing states like Arizona, Georgia, Michigan, Wisconsin, Pennsylvania and Florida.  The 2024 presidential election, a rematch of Biden v. Trump, comes down, once again, to those swing states.    Biden wins the popular vote in those states.  Trump screams fraud and asks his Republican friends to throw out the election results in those states and instead select a pro-Trump slate of electors.  Or, let's say that doesn't work, and it comes down to the Republican House and Republican Senate certifying the Biden electoral votes from those states.  Are people confident those Republican members of Congress will stand up to Trump and hand the win to Biden?  I have zero confidence of that.

Trump's attempt at stealing the 2020 election was thwarted by an army of local, state and national Republican officials who decided to do their jobs honestly and with integrity.  Those "traitors" are being identified and ousted by Trump and his minions in favor of those who will do Trump's bidding next time around.  

Democrats can do little about that.  But they can help change and clarify vague rules that open the door to the next Presidential election being stolen. Priority number one needs to be amending the Electoral Count Act so it is clear that the Vice President and Congress cannot override the will of the people as reflected in the popular vote of each state.  Republicans can either agree to change the law or take the unpopular position that Congress has the right to override the will of the people.  

Amending the Electoral Count Act should be priority No. 1 for Democrats.  Instead they are obsessed about "voter suppression" laws passed by Republicans that will at best have a minuscule impact on turnout.  Democrats are not going to lose the White House to Donald Trump in 2024 because of the voters.  If they lose, it will be because of the vote counters.  

Indiana Right to Life Takes Anti-Life Position by Selecting Anti-Vaxxer as Keynote Speaker

Yesterday, I opened up my Criterion (weekly Catholic newspaper) to find an advertisement on page three for the "Celebrate Life Dinner" hosted by the Indiana Right to Life.  The speaker for the September 28th event is to be Gianna Jessen.

When I ran for office as a pro-life Republican, I became familiar with Jessen's story.  I even attended an event where she spoke.  I can testify that she's a dynamic speaker with a compelling story.  For those who are unaware, Jessen was born alive during a failed late-term saline abortion.  Her birth certificate was actually signed by the doctor who conducted the abortion.  Jessen, who weighed 2.5 pounds at birth, was born with cerebral palsy, a motor condition that affects various areas of body movement.  She claims this was caused by the failed abortion effort.

Recently though Jessen has carved out a very anti-life position incompatible with the right-to-life movement.  Jessen is prominently featured on Twitter announcing that she is not vaccinated against Covid-19 and urging others to not get vaccinated. 

Jessen no doubt has quite a number of Twitter followers who read her anti-vaccination tirades.  No doubt that for many of them, following Jessen's advice has cost them their lives.  Nearly 700,000 Americans have died from Covid-19.  Since early this year, virtually all those deaths could be avoided with a simple vaccination.   Yet, people like Jessen have instead chosen to spread misinformation that has proven deadly to Americans. 

In addition to opposing a vaccine that will save thousands if not millions of American's lives, Jessen has used Twitter to spread the Big Lie.  Her Twitter feed is filled with tweets and retweets with claims that Donald Trump actually won the 2020 election and the presidency was stolen.  Of course, Jessen has no actual evidence to back up that claim. As I've said before, the election results show that Trump lost, not because of fraud, but because a decisive percentage of Republican-leaning voters in swing states voted for Biden, while voting for other GOP candidates down ballot.  Even Senator Ron Johnson (R-WI), a leading Trump supporter who has latched on to virtually every conspiracy theory out there, admits that Trump lost not because of fraud, but because of GOP crossover vote in favor of Biden.   

It would be easy to write off Jessen's support of the "Big Lie" as the rantings of a disappointed Trump voter.  But Jessen is a public figure and her pronouncements, i.e. her lies, have the effect of undermining confidence in American elections and democratic institutions.  Her deliberately misinforming her followers about the 2020 election has real life consequences and she should be held responsible for her dishonesty.

Jessen has also tweeted positively about the Texas abortion law. 

as someone who was born Alive in an abortion clinic, did not die and has cerebral palsy as a result- i applaud you and texas for defending innocents. thank you for your Courage. carry on! 🔥 https://t.co/4tpTptfPEX

— gianna jessen-1776 again. 🇺🇸🔥 (@giannajessen) September 7, 2021

The Texas abortion law awards bounties to private citizens for turning in people who assist a woman having an abortion after six weeks of pregnancy. The law, which has no chance of being upheld even if Roe v. Wade is reversed, is an abomination which puts pro-lifers in the worst possible light.  Yet, Jessen has no problem promoting a law which seems intentionally designed to make the pro-life movement look bad.

If the Indiana Right to Life truly cares about promoting the pro-life cause, it should disinvite Jessen as speaker.

****

OOP's short takes:

• I have reached out to Indiana Right to Life to find out what, if any precautions (such as masks, social distancing, vaccinations, etc.) are going to be taken to ensure its annual dinner doesn't become a Covid-19 super-spreader event.  This should be even more of a concern since the speaker is a prominent anti-vaxxer who no doubt will attract others to the audience who refuse to be vaccinated.  I will let readers know of any response I receive.

California Recall Results Suggest Democratic Election Strategy for Mid-Terms

With 71% of the California vote in, the "No" vote to recall Democratic Governor Gavin Newsom is running ahead of the "Yes" vote by 28%.  That margin may increase as the remaining votes to be counted are mail-in ballots which are expected to be heavily Democratic.  

The day before the election, I had planned to write an article predicting the "No" vote would win by 20%.  My feeling was that Newsom had seized control of the campaign and that prediction reflected that.  Still most polls weren't predicting a 20% margin so I'd be going out on a limb based on a hunch.  Never got around to writing the article.  Turns out my "hunch" about a bigger than expected margin was too conservative. 

Gov. Gavin Newsom (D-CA) 

There was a time when Governor Newsom stood a real chance of losing the recall. His popularity was in the toilet as he had angered voters by going out to a dinner party at a fancy restaurant, ignoring the strict Covid-19 protocols he was demanding other Californians follow.  The story led to a resurgence of interest in the recall petition circulating at the time.  That renewed interest in recall was aided by a judge's ruling which gave Newsom's opponents more time to gather signatures due to the pandemic.

The recall works like this. There are two ballots.  The first is whether to recall the Governor.  That is a "Yes" or "No" question.  The second ballot is who will replace the Governor if the "Yes" vote is a majority.  If the "No" vote prevails on the first question on the ballot, the second is irrelevant.

Newsom had tried to nationalize the recall by making it about former President Trump who had lost California badly and is deeply unpopular there.  Newsom's strategy was not working though because the Republicans in the race were moderates, such as the former two term mayor of San Diego, Kevin Faulconer, or were conservatives who were not well-known.  

Then long-time radio host Larry Elder entered the race.

Elder is well-known among Republicans.  He had long ago carved out some very conservative views.  Then when Donald Trump ran for President, Elder became an enthusiastic champion of the reality show star.   With Elder in the race, Newsome was able to put a face on his claim that California would be taken over by Trumpism if he was removed from office.   The Governor's efforts were helped by the fact that Elder over the years, like many radio hosts, had made a number of incendiary comments that didn't play well outside his right-wing audience.

Even though the all-important first ballot was whether voters should keep Newsom in office, the Governor was able to make the election a one-on-one contest with Elder.  And while Elder did consolidate much of the Republican support, he was thoroughly trounced when compared to Newsom.

One would think Elder's complete annihilation would discourage him from running again.  But in the era of Trump, running to win an election is not as important as running to promote oneself.  In the run-off, Elder succeeded in raising his profile considerably, thus opening him up for more opportunities to enrich himself inside and outside of politics.  In the Trump World, that's a win.

The real loser last Tuesday was the California Republican Party which may be stuck with a highly unpopular gubernatorial nominee who will drag down other GOP candidates on the ballot in 2022.

For Democrats, the recall election taught them a lesson.  To have any chance of holding their own in a mid-term election which is likely to favor the Republicans, Democrats need to nationalize the election.  They need to make the election not about Joe Biden, but about Donald J. Trump.  To do that, Democrats need Trumpy, Elder-like candidates nominated.  Fortunately for them, it appears the Republican Party is going to cooperate.

OOP's shorttakes:

• Republicans in the Indiana General Assembly introduced their proposed redistricting maps this week.  Not surprisingly, CD 5 was shored up by removing heavily Democratic Marion County from the district.  The district probably will get tight again, but for at least the next three cycles incumbent Victoria Spartz should be assured of re-election.
• I don't have the numbers in CD 1, but it doesn't appear that the Republicans changed it enough to make it a Republican-leaning district.  I am surprised.  Democratic Congressman Frank Mrvan only won the district with 56.6% of the vote in 2020.  
• Flipping CD 1 would have required weakening nearby districts, including CD 2 currently represented by Rep. Jackie Walorski.  CD 2 has actually gotten more Republican since the 2010 redistricting, culminating in Walorski securing 61.5% of the districts vote in 2020.  Still, Walorski's close elections under the 2010 map, including 2012 when she won with just 49% of the vote, has not been forgotten.  No doubt she was lobbying behind the scenes not to weaken the Republican vote in her district to try to pick up another seat.  
• Still the Republican mapmakers could have moved some GOP voters from neighboring CD 4 into CD 1 to give it more of a GOP flavor.  In that district, Republican candidates are regularly winning by around 30 points.  One thing that is often overlooked about redistricting is that incumbency protection is often a higher priority than the majority party trying to add seats.  

The Truth About True the Vote's "Voter Fraud" Investigation

A friend sent me information on the investigation an organization called True the Vote was conducting.  Included in the email were what appeared to be comments readers had made after reading about the True the Vote investigation. My friend apparently thought the comments were insightful and persuasive.  They were not.  More on that in a bit.

Some background is in order.  In conducting the 2020 election some states employed drop boxes where voters could leave their completed ballots.  In some states such as Georgia and Arizona, the law allows for people other than the voter to drop off those ballots at drop boxes, but limited such people to relatives

of the voter, caregivers, etc.   The problem is how do you enforce that law so unauthorized individuals aren't dropping off ballots?  You can't put a police officer next to the drop box and ask those dropping off ballots to prove their relationship to each of the voters.  Even if you get the name of the person delivering ballots and the name of the voters, sorting out the nature of the relationship would be extremely time-consuming and labor intensive.

During its investigation, True the Vote claims to have obtained cell phone "ping" data which shows individuals in Georgia and Arizona dropping off an excessive amount of ballots.  This suggests illegal "ballot harvesting" was going on.  

Ballot harvesting is the practice of groups or organizations collecting and turning in individual voters completed election ballots.  While the practice seems harmless, it can in fact undermine the secrecy of the ballot.   The reason voting booths are used on Election Day is so that voters can cast their ballots in private.  As more and more voters are using non-traditional options such as mail-in ballots, there is an interest in ensuring that those methods do not lead to voters being pressured or intimidated.  The ballot needs to remain secret, at least at the option of the voter.  Ballot harvesting opens the door to companies, labor unions and other organizations pressuring voters to vote a certain way.  

For True the Vote calling what is going on "ballot harvesting" is not nefarious enough.  The organization calls it "ballot trafficking" which "was occurring as part of an organized criminal enterprise."   To True the Vote's credit, however, the organization seems to avoid calling the practice "voter fraud."  A Breitbart article, however, described True the Vote as conducting a "voter fraud" investigation.  

The True the Vote investigation gave readers the chance to sound off on their own conspiracy theories, including ballot stuffing.  Here is an example:

Start with warehouse in GA.  Foreigners working with gloves and filling out false ballots.  Something else, everyone uses burner phones.  The type the mafia uses.  After months of checking cell phone traffic in five states about ready....two or three months.....to present data.  Get back to GA warehouse and burner phones.  Check, do they use rental cars?  If so, how about hotels?  After weeks you begin to be able to put a human with a name in a hotel.  Makes it easier to follow.  You identify several....after weeks.   And you begin to see patterns.  They all go to the same UPS stores; have the same traffic pattern; stop at the same places.  You begin to see the stops are at drop boxes.  Get so you can pretty well trace various people.

Now, pictures are being taken all the time.  Millions of them.  After weeks, begin to see a guy go to a drop box over and over.  Then others.  And you have their pictures.  In one state True The Vote has identified 240 people that made an average of 23 trips to drop boxes.  Can't make this stuff up....I am just glad there are smart people who can figure this stuff out.

I know there is a lot more to this story but I can only share what I was given.  Rave on airborne!

Those damn "foreigners"!  They filled out fake ballots for Joe Biden and drove rental cars to put the fake ballots into drop boxes!  They were clever to use gloves and burner phones while doing the dastardly deed!  (Yet, they apparently weren't smart enough to vote for the other Democrats down ballot.)   Why couldn't Democrats find Americans to stuff the ballot boxes?   Instead, they put up the "foreigners" in hotels to commit the fraud!  America First!  No Masks, No Jab!  MAGA!

So stupid. So incredibly dumb.

I would not be surprised if the use of unmonitored drop boxes led to illegal ballot harvesting.  In fact, I would be surprised if it did not.  But while the conduct of the harvester might be illegal, that doesn't invalidate the votes.  The remedy is not disenfranchisement of voters by disqualifying their ballots.  The remedy is prosecution of the harvester.

But the claim that the harvester is "stuffing" drop boxes with fake ballots is absurd.  When the votes are taken drop boxes they are matched, by a Republican and Democratic poll worker, to a registered voter list.  If a voter is not on the list, the ballot doesn't count.   

The "foreigner," however, could fill out a ballot for a dead voter still on the voter registration list.  (That's why I advocate for more frequent purges of non-voters and identification requirements beyond signature.)  But it's hard to cast more than a handful of votes by dead people voting.   A few dead people indeed were found to have "voted" in 2020.  Most of the time it was relatives who carried out the wishes of a deceased love one who planned to vote for Trump.

Adding votes by stuffing the ballot boxes does not work because you cannot have more ballots than voters.  But what would work is flipping votes so the totals match, but the outcome is different.  A computer bug could be inserted into an electronic voting machine to flip votes so that some Trump votes are recorded as Biden votes.  (An HBO documentary showed how this could be done.)  That is in fact what some Trump conspiracists allege was done with the Dominion voting machines.

What undoes that conspiracy theory is the paper trail.  Post-election hand counts of the paper ballots showed they matched what was on the machine.  Votes weren't flipped from Trump to Biden.  As I've written before, Trump lost because a significant percentage of Republicans in key swing states crossed over to vote for Biden instead of giving Trump a second term.

Republicans don't need to Stop the Steal.  Republicans need to Stop the Stupid.

OOP's short takes:

• A number of reporters have pointed out the hypocrisy of Republican Governors in their rationale for opposing vaccine mandates for Covid while their states have vaccine mandates for a wide assortment of other diseases.   Here is a list of vaccines and what states require them.
• Indiana's Governor Eric Holcomb also came out against the Covid-19 vaccine.  Here is a 2021-2202 list of the vaccines that Indiana requires that school children get.   Most of these diseases, unlike Covid-19, won't kill you.
• Here's the thing...I am deeply concerned there is going to be a push by Republicans to repeal all these vaccine requirements.  So pointing out their hypocrisy might backfire.

Wisconsin Senator Ron Johnson Contradicts Trump's Election Fraud Claim, Says Trump Lost Because Republicans Voted Against Him

Yahoo reports:

Republican Senator Ron Johnson, one of Donald Trump's most loyal allies in Congress, was caught on video blaming the former president for his election defeat in 2020.

Mr Johnson made the comments to a liberal activist pretending to be a conservative while she questioned him during an event in Milwaukee. The woman pretended to buy into Mr Trump's election conspiracy theories, and suggested that voter fraud was the reason the former president lost in Wisconsin.

Mr Johnson tells the woman that he disagreed, noting that there was "nothing obviously skewed about the results”.

“If all the Republicans voted for Trump the way they voted for the Assembly candidates, he would have won. He didn’t get 51,000 votes that other Republicans got, and that’s why he lost,” Mr Johnson said.

Senator Johnson is 100% correct.  Previously I examined the election results in three swing states.  I found that in every one of those states now President Joe Biden not only received more Republican votes than Trump received Democratic votes, the difference in the cross-over votes was so large it cost Trump those states and the election.  

While the Never Trump Republican contingent has never been large, it was big enough and committed enough to ensure Trump's tenure in the White House was limited.  While Trump was losing the election, Republicans up and down the ballot ran ahead of Trump because those Never Trump Republicans, after scratching for Biden, were voting for the rest of the GOP ticket.  Let's look at the swing states results versus the exit polls in those states:

WISCONSIN (10 Electoral Votes)
Biden won the Badger state by 20,567 votes.   Partisan breakdown in the state according to 2020 exit polls was 37% Republican, 32% Democrat and 32% Independent.  Of the Democratic voters, 4% voted for Trump and, of the Republican voters, 7% voted for Biden.  If Republican Wisconsin voters would have matched the Democrats support for their presidential candidates, Trump would have had 36,401 more votes and won the state.  

ARIZONA (11 Electoral Votes)
Biden won Arizona by 10,377 votes.  Partisan breakdown in the state was 34% Republican, 27% Democrat, and 39% Independent.  Of the Democratic voters, 3% voted for Trump while 10% of the Arizona Republican voters voted for Biden.  If Republican Arizona voters would have mirrored their Democratic counterparts, Trump would have had 69,058 more votes and fairly easily won the state.  

GEORGIA (16 Electoral Votes)
Biden won Georgia by 11,779 votes.   Partisan breakdown in the state in the 2020 election was 38% Republican 34% Democrat, and 28% Independent.  Democrats voted for Trump at a 4% clip, while 6% of Republicans voted for Biden.  Not much of a margin, but enough.  If Republican Georgia voters had simply matched the Democrats support for Biden, Trump would have had 37,576 more votes and won the state.

If Trump had  won Wisconsin, Arizona and Georgia, the electoral college count (assuming no faithless electors) would have been 269-269, thus handing the election to Trump since the House of Representatives, which has a majority of delegations dominated by Republicans, would have decided the presidential contest.

Trump's party crossover vote trailed Biden's in the other swing states including Michigan (-3), Pennsylvania (-1), Nevada (-1) and New Hampshire (-4) though Trump's simply matching Biden's performance wouldn't have put him over the top in those states.. Noteworthy too is that Trump lost the cross-over vote contest in even red states.  For example, Indiana (-1), Missouri (-2), Nebraska (-3).   In blue states, the divide was even greater:  California (-8), New York (-15).  

Despite Trump's supposed appeal to Democratic-leaning working class voters, I could find no state in which Trump beat Biden in cross-over votes.  In 2016, Trump and Hillary Clinton tied in getting cross-over votes.  

Senator Ron Johnson is absolutely right.  Fraud didn't elect Biden, Republicans did.  If Trump would have simply matched the performance of down ballot Republicans, he would have been re-elected.  Trump lost because a significant share of Republican voters simply did not like him.

Biden's working strategy was always that he could get less educated, white working class voters to return to the Democratic fold after years of drifting toward the Republican Party.  Despite considerable effort, Biden barely moved the needle on that demographic.

Instead, Biden won the election by performing much better in America's suburbs than Democratic presidential candidates before him.  While Biden's outreach effort to white, working class voters failed, he did spectacularly well with well-educated, wealthy suburbanites who couldn't stomach another four years of Donald Trump.

Biden though seems disinterested in exploiting and expanding the suburban electoral shift toward Democrats, a trend which actually began a decade ago.  Biden's Lyndon Johnson-esque domestic policies seem a continuation of his outreach to the very white working class voters who shunned him in 2020.  Meanwhile, the fiscally conservative suburbanites whose votes ousted Trump find themselves at the prom alone.  Their date is across the room trying to hook up with someone else.

With redistricting and history against them, the Democrats have little chance to hold on to the House in 2022.  But if Democrats want to hold their losses to a minimum, and retain control of the Senate, Biden would be well advised to reverse policy course, and start courting the fiscally conservative suburbanites who made him President.

OOP's short takes

• On Saturday, I received seven emails from the Trump campaign wanting money.  Friday, it was five emails, Thursday six and Wednesday seven.  I remember last year when apparently someone from the campaign saw my critical Trump blog posts and removed me from the email list. Somehow I am now back on the list.  
• I see that the Trump campaign is continuing with the fraudulent practice of claiming that political donors' contributions will be matched up to 500%.  Because of campaign contribution limits, there is no way to actually match contributions.  The Trump campaign is certainly not alone in lying to contributors about matching.  Other Republican and Democratic campaigns have made the fraudulent matching claim.   The Federal Election Commission needs to put a stop to the practice which has been going on for at least two years.  And if the FEC won't do it, state attorneys general need to step in and take action.
• Reports out of Afghanistan is that the Taliban has not allowed four planes filled with Afghans and Americans evacuees to leave the country for days.  The planes are being held up as leverage by the Taliban to get more from the United States, quite possibly formal recognition as the legitimate government of Afghanistan.  
• The odds that the months ahead will be filled with stories of Americans held hostage and our Afghan allies slaughtered by the Taliban are about 100%.  The overwhelming majority of Americans supported pulling out of Afghanistan and ending our misguided attempt at nation-building. The problem was not that decision, but rather the bungled evacuation effort.  Biden can rightfully put some of the blame on Trump's disastrous Taliban policies, but it was Biden's choice to continue those policies which led to the evacuation failures.
• A week before the recall election, California Governor Gavin Newsom appears to, finally, be in a good position to win the vote to stay in office.   California's recall election works like this. Once a recall petition is signed by enough voters, an election is held.  The election consists of two votes.  One is whether the incumbent should be retained in office.  The second is a vote for his/her replacement.  In the event there are enough votes to remove Governor Newsom from office, you go to see who wins the second ballot.
• The problem with the law is that the second ballot is that the replacement candidate can be elected with a small plurality of the vote.  Projections are that conservative radio host Larry Elder, running as a Republican, might lead the field of Republicans and Democratic replacement candidates with as little as 18% of the vote.  
• The recall election process is right now the only realistic way a Republican can be elected statewide in California.  Which begs the question why the Democrats, who control all the branches of California's government, do not simply change the recall election law.