Nov. 09

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New Senate: DEM 46     Ties 3     GOP 51

New polls:  
Dem pickups: NV
GOP pickups: IN MO ND

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Some Races Are Still Undecided

We knew there would be a number of close races, and Election Day showed that was true. There are races for governor, senator, and member of the House that are still unresolved, and may linger on for days or weeks (or even months).

Let's start with the one gubernatorial race that is still open: Georgia. Brian Kemp (R) clearly won the race with 50.3% of the vote, beating Stacey Abrams (D), but when all the absentee and provisional ballots are counted, he might end up a hair below 50%, in which case state law requires a runoff between the top two candidates. Abrams has refused to concede and wants every vote counted in the hope that Kemp doesn't make it above 49.999%. Kemp has been widely criticized for refusing to recuse himself from the vote counting (he is secretary of state), but yesterday he gave in to the pressure and resigned as secretary of state. When all the remaining votes are counted, we will see if there will be a runoff.

Next come three Senate races that are still open. In Florida, it appears that although Gov. Rick Scott (R-FL) got more votes than Sen. Bill Nelson (D-FL), the difference between the two is only 0.2%. State law calls for an automatic recount when the top two finishers are within 0.5%, so it looks like there will be recount there. On top of that, it also turns out that there were some "irregularities" with some of the balloting. You don't think of Florida as a place where they can't count votes correctly, but there it is. Specifically, in Broward County, there were 24,000 ballots recorded. with a vote for governor, but not one for senator. While it is possible and legal for people to skip one or more offices, there is no other county in Florida that had anywhere near this many "skips." Furthermore, most of the 24,000 also had votes cast for downballot races, like commissioner of agriculture. It is very unusual, indeed, for someone to have an opinion about the agricultural commissioner and not about the Senate. Add it up, and experts are convinced that the machines somehow erred. The situation is still being unraveled, but about 70% of the votes in that particular county were cast for Bill Nelson. If we are to assume that the missing ballots actually had a vote, and that those votes followed the same pattern, then it would mean a net gain of +9,600 votes for the Senator in a race he currently trails by 17,000.

There is a major development in the Arizona race, so it gets its own item (see below).

The final undecided Senate race is the Missisippi special election in which Sen. Cindy Hyde-Smith (R-MS) and Mike Espy (D) tied at about 42% each. Since neither one hit 50%, there will be a runoff between them on Nov. 27. However, the missing 16% went to right-wing firebrand Chris McDaniel, who is way to the right of Hyde-Smith. It is inconceivable that many of them will vote for Espy, who is black. While the ballot will read Cindy Hyde-Smith (R) vs. Mike Espy (D), given how racial Mississippi politics is, it might as well read: Cindy Hyde-Smith (W) vs. Mike Espy (B). After all, this is a state that only formally outlawed slavery in '13. And by that, we mean 2013, just five years ago. Espy has zero chance, so this is a Republican win, even though it is not official yet.

Now on to the House, where 14 races are still open. FiveThirtyEight guru Nate Silver thinks the Democrats are in good shape to win 10 of them when the absentee and provisional ballots are counted. Here are the races, with the color reflecting the current party that holds them (incumbents are marked with asterisks):

District Democrat Dem % Republican GOP %
CA-10 Josh Harder 49.4% Jeff Denham* 50.6%
CA-39 Gil Cisneros 48.7% Young Kim 51.3%
CA-45 Katie Porter 48.4% Mimi Walters* 51.6%
CA-48 Harley Rouda 51.0% Dana Rohrabacher* 49.0%
CA-49 Mike Levin 53.5% Diane Harkey 46.5%
GA-07 Carolyn Bourdeaux 49.8% Rob Woodall* 50.2%
ME-02 Jared Golden 45.5% Bruce Poliquin* 46.2%
MN-01 Dan Feehan 49.8% Jim Hagedorn 50.2%
NJ-03 Andy Kim 49.8% Tom MacArthur* 48.9%
NM-02 Xochitl Torres Small 50.7% Yvette Herrell 49.3%
NY-22 Anthony Brindisl 50.3% Claudia Tenny* 49.7%
NY-27 Nate McMurray 48.4% Chris Collins* 49.5%
TX-23 Gina Ortiz Jones 48.7% Will Hurd* 49.2%
UT-04 Ben McAdams 51.3% Mia Love* 48.7%


Some media outlets have called a few of the races, but none of the candidates have conceded yet and vote counting is still in progress. In California, late votes tend to be for Democrats, and it is possible they could yet win most or even all of the undecided races. The others are also very, very close. In GA-07, for example, Rob Woodall is only 1,000 votes ahead with all the provisional and absentee ballots yet to be counted. In ME-02, probably neither candidate will hit 50%, in which case Maine's new instant runoff voting will kick in and gradually eliminate the fringe candidates. In MN-01, the AP has called it for Jim Hagedorn, but Dan Feehan has not conceded. The AP has also called NM-02 for the Democrat, but Republican Yvette Herrell has not conceded. NY-27 is a bit more complicated because Rep. Chris Collins (R-NY) has been indicted. He appears to have won and McMurray first conceded then un-conceded (see Q & A below for more on this). The AP has not called this one yet. The TX-23 district runs for hundreds of miles along the Mexican border so it takes a while to collect all the votes. Rep. Will Hurd (R-TX) claimed victory, but his opponent refuses to concede until all the votes have been counted. Despite what Donald Trump said about Mia Love not loving him enough, more than 200,000 ballots remain uncounted here. (V)

Sinema Takes the Lead in Arizona

As the vote counting in Arizona continues, Rep. Kyrsten Sinema (D-AZ) has taken the lead from Rep. Martha McSally (R-AZ) for the first time for the Senate seat that was vacated by Sen. Jeff Flake (R-AZ). Sinema is currently ahead by 9,610 votes.

The counting process is slow because (1) this is a record midterm turnout, with about 65% of eligible voters casting a ballot, and (2) 75% of the voters used absentee ballots. Counting absentee ballots is a slow process because first the signature on the outside of the envelope has to be verified. If the signature verifier isn't sure, then the voter is contacted. All this takes time. The Republicans don't like the way this is moving and have filed a lawsuit claiming that different counties are following different procedures for voter verification and this violates state law.

As of yesterday evening, the number of uncounted votes by county is as follows:

Maricopa County (Phoenix) has some deep red pockets and some deep blue pockets. Arizona Secretary of State Michele Reagan did not break down the uncounted votes any finer than by county. However, most of Pima county is blue and most Native Americans, who are heavily represented in some of the counties, are Democrats. If you want to track progress in the election, Reagan said she would try to update the election results page at 5 p.m. EST every day.

If Sinema ultimately wins this one, the likely balance in the Senate will be 53 Republicans and 47 Democrats (including the two independents who caucus with them). It will also represent another first: The first openly bisexual senator. (V)

Karen Handel Concedes

Democrats did this week what they couldn't do in 2017, despite spending $23 million on it back then. They beat Karen Handel. This was the seat of Tom Price, who resigned to become a short-lived secretary of HHS. The race to succeed him featured newbie Jon Ossoff (D) vs. former Georgia Secretary of State Karen Handel (R). Ossoff went viral and pulled in a vast amount of money, but in the end Handel won the right to fill out Price's term. It was the most expensive race for a House seat in history, with $55 million spent in the end.

On Tuesday, Handel went for a full term of her own and was defeated by Lucy McBath (D), who is black. McBath didn't have a history of political activism until her son was shot and killed by a white man who didn't like the music coming from the son's car. So she got involved in gun-control groups and eventually decided to run for Congress. The race attracted little national attention this time, but McBath clearly pulled it off, which Handel conceded yesterday. It is somewhat ironic that an unknown, older black woman could do under the radar what a viral young white superstar with more money than Croesus could not do in the national spotlight. This may suggest something about the salience of the gun issue, particularly to younger voters who often don't vote in midterms. (V)

Matthew Whitaker's Appointment as Attorney General May Be Unconstitutional

Remember George Conway, the lawyer who represented Paula Jones and got the Supreme Court to rule 9-0 that civil suits against sitting presidents are allowed? The same George Conway who is married to one of Donald Trump's biggest supporters, Kellyanne Conway? He's at it again. He and Neal Katyal, a former acting solicitor general (under Barack Obama), wrote an op-ed piece in the New York Times saying that Donald Trump's appointment of Matthew Whitaker as acting attorney general is unconstitutional. Mr. and Mrs. Conway probably have some interesting conversations over dinner.

Their argument is simple. Art. II, Sec. 2, Clause 2 of the Constitution clearly states that principal officers of the United States must be confirmed by the Senate. They argue that the courts have held that a "principal officer" is one who reports directly to the president and only to the president. Special counsel Robert Mueller, for example, reported to Deputy AG Rod Rosenstein (and now to Whitaker), so he is an inferior officer, not a principal officer, and as such does not need Senate confirmation. But Whitaker reports only to the president and to no one else, so he is a principal officer and as such needs Senate confirmation.

If he later does something that someone with standing doesn't like, he could be sued as not having the authority of the attorney general because the Senate didn't confirm him. And it does not make things any easier that, given his less-than-stellar background, and his vocal criticism of Mueller, even Republicans on the Hill are unhappy about the move. So, stay tuned. (V)

Mueller Reportedly Working on "Final" Report

As Donald Trump engages in maneuvering designed to either curtail or outright end Robert Mueller's investigation, sources say that Mueller's team is writing its "final" report.

Exactly what that means is a little bit unclear. There are areas that Team Mueller was clearly working on that have not been resolved. For example, Roger Stone's role in this whole affair. Not to mention the President's (written) testimony, which Trump says he is "still reviewing." So, what are the possible interpretations of this news? Here are a few:

Whatever the case may be, we will presumably find out very soon. (Z)

What the 2020 Candidates Learned This Week

The 2020 would-be Democratic presidential candidates have spent the week sifting through the tea leaves and wreckage of Tuesday's elections for clues about how to grab the brass ring in 2020. Here is Politico's take on the lessons to be learned:

No doubt there are other lessons as well, but this may only become clear later on as we look back. (V)

White House's War With Acosta Grows Nastier

The Trump White House, especially the guy at the top, dislikes Jim Acosta. And when Acosta engaged the President in some very direct post-election questioning, it did not make Trump happy. And, late on Wednesday, Acosta's pass for accessing the White House grounds was revoked. Those things are not in dispute. The rest of what happened Wednesday, on the other hand, is.

To start, here is CNN's video of the Acosta-Trump interaction that led to the current controversy:




CNN's embedded videos sometimes don't work so well, so here is a direct link to the page on their site that has it (most of the other versions online are edited down, and so are missing key stuff). In any event, it's worth watching the whole thing, as it is less than three minutes. On a somewhat trivial note, it is remarkable that someone who is so concerned about his appearance would hold an event like this when he clearly came straight from the tanning machine. The white circles around his eyes are so pronounced, it looks like he's wearing John Lennon-style granny glasses. There are also two much more significant things to note, however. The first is that Trump's behavior throughout the entire interaction was shockingly unpresidential, even by his standards. That aspect is not getting much attention, but during the entire exchange, Trump was confrontational, dismissive, and petulant. At one point, he walked away from the podium, and it looked like he was thinking about punching Acosta. The second is that in the critical segment in the clip (which begins around 1:25), a White House staffer (probably an intern) tried to take the microphone away from Acosta by reaching under his arms. This caused his non-microphone arm to bump into the arm she was reaching out with.

Why, exactly, is that the critical segment, you might ask? Well, because InfoWars took that clip, speeded it up, and then propagated it as "authentic" footage. At normal speed, the contact is clearly inadvertent and is not at all forceful. Sped up, it looks a little like Acosta pushed the staffer. And, as Sarah Huckabee Sanders attempted to justify the decision to pull Acosta's press pass, she decided to tweet out the Infowars video:

We stand by our decision to revoke this individual’s hard pass. We will not tolerate the inappropriate behavior clearly documented in this video. pic.twitter.com/T8X1Ng912y

— Sarah Sanders (@PressSec) November 8, 2018

The irony that an administration so obsessed with "fake news" is using the site that pretty much invented fake news in order to justify its dubious decisions has been lost on approximately zero people.

In any event, the White House press corps is furious, and CNN has made clear that it wants Acosta's credentials fully restored. Nothing quite like this has ever happened before, and the last time that something even somewhat similar happened was when Stuary Loory's credential was revoked for his negative coverage at the height of the Watergate scandal. In any case, CNN could very well file a lawsuit if the White House does not back down, and they would have a solid First Amendment basis for it. This administration does not often admit fault, and so may choose to let CNN take its best shot. It's also possible that Sarah Huckabee Sanders, who has reportedly been on the way out the door for months, could become the fall guy (fall gal?) here, for both the press pass revocation and for retweeting a phony video. (Z)

Friday Q & A

There were, naturally, a lot of questions related to this week's election, so we decided to focus on those. The elections (and the vast amount of news) are also why this is one day later than usual:

The newly minted Democratic Representatives in red states that have pledged to not vote for Nancy Pelosi as speaker in January have made me a bit curious as to who the alternative might be. Given the fact that the Speaker isn't required to be a sitting member of the House, could former President Obama be nominated as Speaker on the basis that he would be a unifying force for Democrats at a time that their unity and leadership structure appears somewhat fragmented? What would the pros and cons be of such an appointment and would it put the Representatives who want an alternative right back where they started with their constituents? What about presidential succession? Is this remotely plausible as an actual sequence of events when it comes time to vote? C.D., Northville, MI

In terms of the legality of such a maneuver, there are three relevant statutes. The first is the second article of the Constitution, which empowers Congress to establish a line of succession. The second is the 22nd Amendment, and the relevant part of that amendment reads thusly:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

You will observe that it says a president cannot be elected to more than two terms; not that they cannot serve more than two terms. So, Obama is in the clear thus far.

The third relevant statute is the Presidential Succession Act of 1947, passed under the authority granted by Article II. That particular law has been criticized six ways to Sunday for various questions it leaves unanswered, and for others that it answers in imprecise fashion. The key passage, in terms of your question, is the one that says only "officers as are eligible to the office of President under the Constitution" can be elevated to the presidency. If that line read "eligible to be elected to the office of President," then Obama would be out of luck. But that particular wording, which does not include the word "elected," implies that a person need only meet the three basic tests of eligibility (natural born citizen, 14 years' residency, 35 years of age) laid out by the Constitution, and that the 22nd amendment does not apply. This would probably go to the Supreme Court if the hypothetical situation you describe came to pass, and Obama would probably win. But it's not a slam dunk.

So, that is the legal angle. As to the political angle, this would probably not hurt the non-Pelosi representatives, since they would have fulfilled their promise. But it would almost certainly backfire on the Democrats, and would also set a precedent for monkeying with the system in order to get around term limits. So, there is no chance this actually happens.

In terms of realistic alternatives to Pelosi, Tim Ryan (D-OH) is the last guy to challenge her throne, and could be back for a second go-round. And if the blue team thinks their future lies in their past (i.e., dominating the midwest), then picking a midwesterner as speaker would help with that. But our guess is that it would be a dark horse if it's not Pelosi. Perhaps someone who is a minority, but a centrist-leaning one, so that each wing of the Democratic Party gets something they want. Someone like Henry Cuellar or Vicente González (both D-TX).


How often do recounts result in a change of outcome? C.B., Oakland, CA

FiveThirtyEight did a piece on this a couple of years ago, and their conclusion was "not often." But the more important part of their conclusion is that the number of votes that a candidate can pick up is somewhere in the hundreds, for an average-sized statewide election. So, an election decided by 200 votes could very well be flipped by a recount. One decided by 15,000 votes, not so much. Among the more notable cases of candidates who won after a recount in recent memory: Al Franken (Minnesota Senator, ultimately won by 312 votes), Christine Gregoire (Washington governor, 133 votes), and Frank McCloskey (Indiana congressman, 4 votes).

Note that if election problems are discovered (like the malfunctioning voting machines noted above), that is not a "recount," and so a much larger victory could be erased under those circumstances.


What exactly does it mean for a candidate to concede? Has it ever occurred where a candidate conceded the race then went on to win? M.W., St. Paul, MN

Concessions are merely a polite gesture. Politicians who plan to run for future office may make them in order to cement a reputation as fair-minded and a good sport. Politicians who do not plan any future runs may make them in order to give themselves and their (probably exhausted) staffs some closure.

The concession has absolutely no legal significance, and the ballots are counted and final results are published regardless of a concession. There have not been any recent high-profile conceders who went on to win, but there have certainly been conceders who un-conceded. That includes Nate McMurray (mentioned above), and Al Gore in 2000.

There was, of course, much concern when Donald Trump implied that he had no intention of conceding if Hillary Clinton won the election. This was not for legal reasons, but because there was good reason to believe his followers might resort to violence.


After the firing of Sessions, there is a lot of speculation about what Trump and Mathew Whitaker might do with the Mueller investigation and the potential Democratic response. In regard to the Democrats, all of their substantial power will only take effect when the new House membership is sworn in on January 3, 2019. That's nearly two months away! It seems like Trump is getting ready to take more action well before then. What recourse, if any, do the Democrats have before January 3, 2019? Is there permanent damage that could be inflicted on the Mueller investigation that a new Democratic majority in the House would not be able to address?

S.B., Los Angeles, CA

There is little House Democrats can do before January 3, other than make use of the court of public opinion. It may be a moot point if Mueller really is close to being done (see above). It is also the case that House Democrats, if they so chose, could just hire a fired Mueller and have him work for them. So, Trump cannot actually deal a mortal blow to Mueller's investigation in the next two months, even if he tries.


I read that in the midterm election an amendment to the state constitution in Colorado was passed, that would make involuntary servitude for criminals illegal in the state. My question is, what is the legality of that given that at the federal level, the thirteenth amendment explicitly states it is legal? If a privately run prison in Colorado wanted to continue a labor program there, would they have a valid legal argument?

M.R., Philadelphia, PA

The 13th Amendment says, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States." The wording is important; the amendment does not protect the right of states to enslave prisoners, it merely says the federal government isn't going to forbid it. And since any powers not specifically claimed by the federal government are the province of the states (per the 10th Amendment), it means Colorado is perfectly within its rights to be even more restrictive about the slavery than the Constitution is.


Regarding newly elected, and deceased, Nevada assemblyman Dennis Hof, is the replacement appointed (and if so, by whom) or is there a special election? Could Lesia Romanov be appointed? J.K., St. Paul, MN

Speaking of powers granted to the states, it is left to them to determine the manner in which replacement officeholders are selected. Each state thus has its own rules, and in many cases a state will have different rules for different offices. A pretty good general (though not universal) rule of thumb is that states generally try to avoid holding special elections (which are expensive) unless the importance of the office justifies the expense. Another significant notion that often comes into play is that if an officeholder is empowered to pick a replacement, that officeholder (or those officeholders) should represent the same constituency as the office they are filling. Taken together, these things explain why a special election for a House seat is actually much more likely than one for a U.S. Senate seat. House elections are much cheaper than U.S. Senate elections, because they are usually smaller, and a governor and senator represent the same constituency (the whole state), while a governor and representative do not.

Anyhow, these two conditions also explain what will happen with Hof. The seat is not significant enough to trigger a brand new election. And so as to make sure that his replacement will be selected by folks with the same constituency as Hof, the new person will be chosen by a vote of county commissioners from the three counties that form parts of Hof's district (NV 36). By the terms of Nevada law, the replacement must be from the same district as Hof, and must be the same party (Republican). Romanov, as a Democrat, is thus not eligible to be selected.


Can the House really reveal the tax return of Donald Trump? Is it really in its power? Force him to show it or to go public with it?

P.B., Lille, France

U.S. Code Section 6103 grants the privilege of seeing anyone's tax return to two functionaries in Congress: The chair of the House Ways and Means Committee, and the (nonpartisan) Chief of Staff of the Joint Committee on Taxation. Meanwhile, these two committees (Ways and Means, Taxation) are allowed to disclose the returns if doing so serves "legitimate legislative purposes." If there's something dirty in them, then that bar would surely be met. So, the answer to all of your questions is "yes."


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