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Election D-Day (Ep. 281)

On this week’s podcast, the MPU gang handicaps the presidential election and the world it will portend.

Winning the Vote-By-Mail War

by Kevin Kelton

The vote-by-mail war is on! With President Donald Trump and his puppet Postmaster General, Louis DeJoy, aligning to muck up the postal service’s ability to collect and deliver mail-in ballots, Democrats in Congress seem to have little power to resist Trump’s assault on the USPS budget and processes. Yet the battle is not lost.

Each of the 50 states plus D.C. sets its own election laws. And those laws can be adapted in extreme circumstances. So let’s say that because the delivery of mail-in ballots has been slowed down by Trump’s interference, causing millions of ballots to arrive after the individual states’ deadlines. In some states that is election day, but in some it could be three to seven days after Election Day if the ballot is postmarked by November 3rd.

Under those circumstances, some states may have room to loosen their deadline to allow for processing of the delayed ballots. In other words, a governor in tandem with the secretary of state or the state legislature could decide to expand the three day window to five or seven days, allowing tens of thousands of valid mail-in votes to qualify to be counted. Such a last-minute change would be akin to deciding to leave the polls open past the announced closing time so as to give everyone already on line a chance to vote.

Of course, that would be an ugly rodeo of individual state laws and politics. But Democrats are not without their weapons. If the party has enough clout in a state, it’s possible the politics could work in their favor.

Using the chart below, I analyzed the most likely scenario: Joe Biden wins most of the swing states now leaning or likely to vote blue if all the votes are counted, but might lose if all the mail-in votes are not accepted. How would that work out if those state’s governments align with the Democrats?

Lets look at 25 states that Biden has a good chance of winning if all the votes are counted (chart below). 

In states in which at least two of the three electoral power players – governor, secretary of state, and state legislature – are controlled by Democrats, those mail-in vote deadlines might be adjusted to let Biden carry 284 electoral votes and win the election. However, in-state power battles with Republicans could make that number dwindle.

In most states, the legislature has little role to play in the vote count and certification of elections. So if we just count states in which the governor and secretary of state are Democrats (or all three components are in Democratic hands) (blue highlights), Biden commands 252 votes – eighteen shy of the presidency.

While that sounds ominious, a more nuanced analysis delivers a more optimistic result. Vermont (3), Oregon (7 votes) and Washington (12 votes) are three “divided government” states that are very likely to vote overwhelmingly for Biden, making the issue of late mail-in ballots moot. That adds 22 votes to the 252 to give Biden 274 and the presidency. 

Still too close for comfort? Consider Nevada and New Hampshire, both states with either a Democratic governor or a Democratic Secretary of State and a Democratic state legislature. That combination of consolidated power could shake one or both of those states’ electoral votes back into Biden’s grasp, potentially adding up to ten more EC votes to his column.

And while Arizona has a Republican governor and state legislature, it’s conceivable that the state’s Democratic Secretary of State, Katie Hobbs, might be able to use her office to get more votes counted in a close election, giving Joe a shot at 11 more votes.

Of course, no analysis of this type can be definitive, as we cannot account for legal challenges between government branches, lawsuits, and the partisan makeup of each state’s highest court.

But the bigger picture shows that the Biden campaign is not helpless even with a feckless postal service that is stacked against them.

Trump may be able to slow up the mail. But he cannot unseat the people who will decide how the votes are counted.

Kevin Kelton is a cohost of The More Perfect Union podcast and founder of Open Fire Politics.


If Trump Refuses To Leave (The John Roberts Conundrum)

by Kevin Kelton

Should the results of the 2020 presidential election be contested, Chief Justice John Roberts may determine who becomes the next president. But not because he might be the swing vote in a Supreme Court ruling on the matter. Instead, Roberts might find himself in the awkward position of choosing who to swear in.

Let’s back up a moment to find out how one man might end up deciding a presidential election. For months now, people have been asking, what happens if President Trump loses but refuses to leave? There are several scenarios that could get us to that point. Let’s look at them one by one.

First off, we need to put an end to the silly meme Democrats are spreading that Joe Biden has to “win big” to become president. No, he doesn’t! He just needs to win in the electoral college, even if the popular vote is close – just as Kennedy did in ’60, Nixon in ’68, Bush in 2000, and Trump in 2016. Please don’t create an artificial higher standard for Joe that Trump can then exploit to question the legitimacy of a tight race.

But if there is no clear winner and the matter is still in the courts, with Trump refusing to leave the White House, the Constitution is pretty clear on that point. Per the 20th Amendment, the sitting president’s four year term ends at noon on January 20th. If no one is sworn in as the next president, Trump doesn’t just continue in the job. It’s up to the Congress to determine who would become the 46th president, which opens a whole panoply of scenarios. As of today the GOP controls the 26 state delegations needed to win in the House. But the vote would happen in the next Congress, not this one, and since an overwhelming Biden popular vote win would likely have strong enough coattails to flip a few more state delegations blue, they would surely elect the Democrat.

And if no one is certified by congress as the new president by January 20th, that void in the line of presidential succession would be filled by… wait for it… Speaker of the House Nancy Pelosi.

Yes, if Trump tries to hole up in the White House while chaos reins, Republicans might end up having to swallow a Nancy Pelosi presidency! (At least until the election results were fully resolved.) Wouldn’t that be a delicious plot twist?!

But let’s say we don’t get there. Let’s assume the electoral process works as it’s designed. The votes are counted, and Joe Biden has at least 270 electoral votes, but Trump claims that mail-in ballots were tainted or illegal voters tipped the outcome in one or more pivotal swing states. Each state would still have to certify its outcome, and we can presume that key swing states run by Democratic governors and secretaries of state (Pennsylvania, Michigan, Wisconsin, Colorado, North Carolina, Virginia, and Nevada) would defend the legitimacy of all the votes counted and certify the winner of their state. The right combination of those would give Biden 270 EC votes, even if there were certification shenanigans in the GOP led states of Florida, Georgia, New Hampshire, or Arizona.

So for the purposes of this hypothetical, let’s say 270 or more electoral votes are certified in Biden’s favor, but Trump still claims the vote was rigged.

The next step happens regardless of Trump’s public pronouncements of a fake election. The Electoral College votes (bound by the new SCOTUS ruling to honor the state outcomes) and Congress ratifies Biden as the winner. 

That brings us to January 20th. Let’s say Biden is the certified winner but Trump is still holding out in the White House, claiming the election was a sham. Biden will still show up at the Capitol Building to be sworn in, with the Chief Justice there to perform the oath. At that moment, boom! Joe Biden becomes the 46th president. It doesn’t matter who is living in the White House or who is sitting in the Oval Office. Neither of those locations are mentioned in the Constitution, and neither of them convey the power of the presidency. Trump would simply be an interloper on government property, and he would soon be escorted out by the Secret Service, whether he likes it or not.

Even if Chief Justice Roberts, for some reason, weren’t to show up, the inauguration would still go forward. Because the President does not have to be sworn in by the Chief Justice; any federal judge can perform the presidential oath of office. As has happened at least seven times in history. So Associate Justice Ruth Bader Ginsburg or another willing associate justice could swear him in, or any judge on the DC Circuit. That oath would make Joe Biden the official President of the United States, and he would assume the powers of the presidency and set up a government, while Trump was illegally barricading himself in the White House like a Branch Davidian.

Which brings us to the thorniest of possibilities: the Roberts conundrum.

Suppose both Biden and Trump claim victory, and each shows up to take the oath on January 20th. At that point, the country would be looking for some form of official validation as to whose inauguration counts. That would put the chief justice in the awkward position of having to decide who to swear in. If Roberts follows the Constitution, he will administer the oath to the congressionally certified winner, Biden.

However, if Roberts, for whatever reason – politics, loyalty, fear – decides to swear in Trump, leaving Biden to be sworn in by a less senior federal judge, an argument would be made that the Roberts inauguration was the more valid one, based on his top position on the federal bench.

Would Roberts really create that type of existential constitution crisis just to protect a Trump presidency? This author highly doubts so. But in the hyper-partisan world of today, it is a hypothetical that cannot be ignored.

So if Trump tries to snatch victory from the jaws of defeat, and he is able to get the public support of Senate and House Republicans, it could come down to John Roberts to decide who will get the imprimatur of the chief justice and, with it, the perceive legitimacy of the oath. Lawsuits would certainly continue for years. But in the meantime Donald Trump might still serve as president, allowing him to pick Ruth Bader Ginsburg’s replacement. Which would all but certainly ensure he would prevail when the matter of the contested election eventually reaches the Supreme Court.

And the question of him voluntarily leaving at the end of a second term becomes ever more in doubt.

Kevin Kelton is a cohost of The More Perfect Union podcast and founder of Open Fire Politics.


Why Clinton Beats Trump…In Pictures

Today, instead of arguing the general election in words, let’s argue it in pictures. (And save me a thousand words.)

For every argument that Donald Trump can beat Hillary Clinton by turning out new, first-time white voters, there’s a picture that says, “No, he can’t.”

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Sanders’ Electoral Math

Let’s talk electoral college math for a moment. Here’s why I’m so concerned about a Bernie Sanders candidacy. This is the electoral map as I see it. And I gave Bernie the benefit of the doubt in several states that I think might be tough for him (NJ, CA, WI). But looking at that map, I don’t see him getting to 270 from here, for these reasons:

IOWA – Sure, he had a great caucus showing. But let’s not forget that in a record turnout year, GOP turnout was still 15,415 higher than Dem turnout. And that’s with all the independents who crossed over to caucus for him, and with record under-30 turnout. So his “I’ll increased Democratic turnout” argument is already baked into the numbers. Plus in a general election, Bernie would bleed some moderate Iowa Dems who find him too liberal.

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