New Senate: DEM 47 Ties 2 GOP 51
New polls:
Dem pickups: AZ NV
GOP pickups: IN MO ND
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Maryland Sues Trump over Attorney General Pick
The state of Maryland has sued the federal government over the appointment of Matthew Whitaker as acting attorney general. The state's argument is twofold. First, federal law says that when a cabinet position is vacant, the deputy assumes the authority of his or her former boss. That would be Rod Rosenstein, not Whitaker. Second, the Appointments Clause of the Constitution states that "principal officers" of the executive branch must be confirmed by the Senate, which Whitaker has not been.
If the judge rules that Maryland has standing to sue, then the case is probably going to make its way up to the Supreme Court, since it is fundamentally a battle for power between the executive branch and the Senate. Even though Maryland is not caught up in that struggle, it does have other cases pending that could be affected by the change in personnel at the Justice Dept., so the judge could rule that Maryland has standing.
The White House, for its part, is digging its heels in on this issue, and is apparently prepared to keep Whitaker in place for an extended period, Constitution be damned. "The President has told me to my face, two times, that there's no timetable for a nominee," one senior administration official said. "And there's no rush for that." The Donald, of course, is known to change his mind in an instant, but it looks like he's prepared to go to the wall on this one.
With that said, Maryland's lawsuit does complicate things a bit for the White House. If Trump/Whitaker were to try to stage a Saturday Night Massacre, and to stealthily cashier special counsel Robert Mueller, Maryland AG Brian Frosh (D) would ask for (and presumably receive) an immediate injunction against such action until the state's lawsuit is resolved. This would thus give Mueller a fair bit of warning that the axe could be coming, and would give Congress the same. In that extra time, Mueller could "finish" his report, or he could make sure to share what he's got with Congress, or Congress could pass a bill affording him protection. Part of what made the original Massacre viable (not that it saved Nixon in the long run) was that by the time anyone knew about it, the heads had already rolled and the dust had already settled. That kind of speed would now appear to be off the table here. (V & Z)
CNN Sues Trump
Maryland wasn't the only one filing lawsuits against Donald Trump on Tuesday. CNN also took the administration to court in response to the White House's decision to ban reporter Jim Acosta. With the full support of the White House Correspondents' Association, the network explained that the suit is not about Acosta, per se, but because "this could have happened to anyone. If left unchallenged, the actions of the White House would create a dangerous chilling effect for any journalist who covers our elected officials."
Thus far, as with Matthew Whitaker (see above), the White House is entrenching. Sarah Huckabee Sanders said the administration will "vigorously defend" itself against what she describes as "grandstanding." She is probably telling the truth, because surrendering to the hated CNN would infuriate Trump, and would not make the base happy, either. However, they are also setting themselves up for a high-profile, embarrassing loss in court. The first problem is the First Amendment, which—of course—grants freedom of the press. And the second problem is the Fifth Amendment, which—of course—grants due process. The White House certainly can bar reporters from the White House, but per the 1977 decision in Robert Sherrill v. H. Stuart Knight, there has to be a compelling reason (e.g., the reporter poses a threat to the president), and that decision must be explained in writing and subjected to review by the courts. The Trump administration has presented no evidence that Acosta is a threat (who has thus forfeited his First Amendment rights), and they certainly didn't give him due process (thus denying him his Fifth Amendment rights).
In short, we are once again in a situation where the Trump White House is on the side of a lawsuit with the much, much weaker argument. Maybe once they get a new AG in there, this kind of thing will stop happening. Yep, that must be the problem, all right. (Z)
Trump Gets Deputy NSA Mira Ricardel Fired
Recently-appointed NSA John Bolton is, to use the technical term preferred by sociologists and anthropologists, a "jerk." Or, if you prefer it to sound a little more regal and scholarly, he is inprobus Americus. His behavior is, and has for years been, notorious—shouting, temper tantrums, throwing of staplers, backbiting, backstabbing, the works. He is the living embodiment of the old line that, "even the people who like him find him insufferable."
We bring this up because, to use another old line, birds of a feather flock together. And so, it should not surprise us that Bolton's closest lieutenants are also inprobi Americi. That includes Deputy NSA Mira Ricardel who, in her short time in the White House, has managed to aggravate nearly everyone she interacts with, including Chief of Staff John Kelly, deputy chief of staff Zach Fuentes, Sec. of Defense Jim Mattis, and others. Things have reached the breaking point, and so Trump has insisted that Ricardel be shown the door. That would not be so unusual, except that the Trump in question isn't Donald, it's Melania. The First Lady and her staff quarreled mightily with Ricardel over the former's recent trip to Africa, and Melania was so infuriated that she demanded—and got—Ricardel's head.
This, of course, is highly unusual. First ladies generally limit themselves to East Wing matters (i.e., ceremonial stuff). The occasional first lady who takes on a West Wing role (Eleanor Roosevelt, Hillary Clinton) treads very carefully, and never gets involved with personnel matters, because she recognizes that she is un-elected and is not accountable to the American people. Now, however, that has gone by the wayside. Of course, by violating precedent, ignoring protocol, and grossly overstepping boundaries, Melania is just proving that she's one of the family. (Z)
Judge Orders Georgia to Review Provisional Ballots
As he ran for governor of Georgia, Brian Kemp (R) tried in half a dozen ways to use his position as Secretary of State in order to secure his victory. Opponent Stacey Abrams (D) is not going down without a (legal) fight, however. And late Monday night, Abrams scored a significant victory, as judge Amy Totenberg (an Obama appointee) sided with the Abrams campaign on several key matters.
First, per Totenberg, Georgia election officials must make a "good faith review" of all provisional ballots that had been rejected because the voter's name was not found on the registration list. It's unclear how many ballots that is, but it may be in the thousands. Totenberg also ordered the establishment of a hotline for voters to determine whether their provisional ballots were counted, and to get an explanation if they were not. Finally, the Judge said that the state may not certify the results until Friday, to give time for any other issues to be raised and resolved.
Currently, Kemp has 1,976,214 votes to 1,918,064 for Abrams, giving him a lead of 58,150 votes. It is improbable that, regardless of what happens with the remaining uncounted votes, and with the provisional ballots that will be reviewed, that Abrams can overcome such a large gap. However, if she can get Kemp's percentage of the vote below 50.0 (it's currently at 50.3), then it will force a runoff. So, that is undoubtedly her target right now. It's something of a longshot, but we should know by the end of the week if it worked out for her. (Z)
Gerrymandering + Trump = Disaster for the GOP
When the newly elected Republicans in the state legislatures drew highly gerrymandered House maps in 2010, they thought they were locking in a GOP House majority until at least 2022. It didn't quite turn out that way. The state lawmakers carefully packed as many districts as possible with typically 55-57% Republicans, stuffing all the excess Democrats into as few districts as possible, all overwhelmingly blue. That would have been fine in previous years with previous voting patterns; such maps could have withstood a blue wave in which Democrats outpolled Republicans by 5 or 6 points.
What the mapmakers never expected is that many of the people they counted as Republicans—namely suburban women—would vote Democratic en masse, thus upsetting their carefully balanced applecart. If you draw a district with 57% Republicans and, say, 9% of the "Republicans" vote for the Democrat, the Republicans lose. For example, Texas Republicans John Culberson and Pete Sessions had nicely gerrymandered districts with lots of suburban voters who were expected to vote for the GOP. They didn't and both gentlemen lost. The same thing played out in the district of Rep. Karen Handel (R-GA) and many others.
Fundamentally, the mapmakers hadn't counted on someone like Donald Trump coming along and redefining who is a Republican. You can't gerrymander effectively if you can't tell how specific precincts are going to vote based on past behavior, and that is precisely what happened. After the next census, when the maps are drawn again in late 2020, in those states where Republicans control the trifecta, they are going to have to think long and hard about what the post-Trump Republican Party is going to look like and who is going to vote for it. That is far from clear right now. (V)
Election Turnout Was Awful, Compared to Other Countries
Despite all the enthusiasm on both sides, only 49.2% of eligible voters cast a ballot in the midterms. Here's how that stacks up against other democratic countries:
We did beat Switzerland, but compared to many other countries, having fewer than half the eligible voters show up is not all that impressive. (V)
How Good Were the Senate Polls?
This is the moment of truth for us: How good were the Senate polls? Here is the comparison of our 1-week polling average against the final results:
| State | D polls | R polls | Diff | D final | R final | Diff | Error |
| Arizona | 48% | 48% | Even | 50% | 48% | D+2 | 2% |
| California * | 46% | 36% | D+10 | 54% | 46% | D+8 | -2% |
| Connecticut | 56% | 38% | D+18 | 59% | 40% | D+19 | 1% |
| Delaware | 61% | 24% | D+37 | 60% | 38% | D+22 | -15% |
| Florida | 49% | 47% | D+2 | 50% | 50% | Even | -2% |
| Hawaii | 63% | 37% | D+26 | 71% | 29% | D+42 | 16% |
| Indiana | 44% | 43% | D+1 | 44% | 52% | R+8 | -9% |
| Maine ** | 50% | 37% | D+13 | 55% | 35% | D+20 | 7% |
| Maryland | 49% | 22% | D+27 | 64% | 31% | D+33 | 6% |
| Massachusetts | 55% | 33% | D+22 | 61% | 36% | D+25 | 3% |
| Michigan | 51% | 40% | D+11 | 52% | 46% | D+6 | -5% |
| Minnesota | 57% | 34% | D+23 | 60% | 36% | D+24 | 1% |
| Minnesota-special | 48% | 40% | D+8 | 54% | 42% | D+12 | 4% |
| Mississippi | 31% | 57% | R+26 | 39% | 59% | R+20 | 6% |
| Mississippi-special | 29% | 38% | R+9 | 41% | 41% | Even | 9% |
| Missouri | 46% | 46% | Even | 46% | 52% | R+6 | -6% |
| Montana | 48% | 41% | D+7 | 50% | 47% | D+3 | -4% |
| Nebraska | 42% | 58% | R+16 | 38% | 58% | R+20 | -4% |
| Nevada | 48% | 44% | D+4 | 50% | 45% | D+5 | 1% |
| New Jersey | 53% | 42% | D+11 | 53% | 44% | D+9 | -2% |
| New Mexico | 50% | 32% | D+18 | 54% | 31% | D+23 | 5% |
| New York | 58% | 35% | D+23 | 67% | 33% | D+34 | 11% |
| North Dakota | 42% | 51% | R+9 | 45% | 55% | R+10 | -1% |
| Ohio | 51% | 43% | D+8 | 53% | 47% | D+6 | -2% |
| Pennsylvania | 52% | 38% | D+14 | 56% | 43% | D+13 | -1% |
| Rhode Island | 55% | 36% | D+19 | 62% | 38% | D+24 | 5% |
| Tennessee | 45% | 50% | R+5 | 44% | 55% | R+11 | -6% |
| Texas | 45% | 51% | R+6 | 48% | 51% | R+3 | 3% |
| Utah | 23% | 59% | R+36 | 32% | 62% | R+30 | 6% |
| Vermont ** | 60% | 19% | D+41 | 67% | 27% | D+40 | -1% |
| Virginia | 53% | 38% | D+15 | 57% | 41% | D+16 | 1% |
| Washington | 53% | 39% | D+14 | 59% | 41% | D+18 | 4% |
| West Virginia | 46% | 41% | D+5 | 50% | 46% | D+4 | -1% |
| Wisconsin | 54% | 44% | D+10 | 55% | 45% | D+10 | 0% |
| Wyoming | 22% | 76% | R+54 | 30% | 67% | R+37 | 17% |
* Kevin de Leon (D) is shown as a Republican, even though he is a Democrat.
** Bernie Sanders (I-VT) and Angus King (I-ME) are shown as Democrats, even though they are technically independents.
Columns 2 and 3 are our polling averages, with column 4 being our prediction. For example, we predicted the Democrat would win Connecticut by 18 points (D+18). Columns 5 and 6 are the final election results, with column 7 being the difference. For example, in Virginia, we predicted that Sen. Tim Kaine (D-VA) would win by 15 points (D+15) but he actually won by 16 points (D+16). Where the Democrats outperformed the polls, the line is in blue, where the Republicans did so it's in red. So, for example, in Wyoming, the Democrat was expected to be crushed by 54 points, but he missed by only 37 points, greatly overperforming the expectation, so the line is blue. The final column is the polling error, with positive numbers meaning the Democrat overperformed the polls.
The margin of error on state polls is generally around 4%, so any state in which the last column is between -4% and 4% is basically correct. The number of states where the polls were "wrong" (i.e., the result was outside the margin of error) is 16, but a lot of these like Delaware, Mississippi, and Wyoming were barely polled so there was no averaging and the last poll might have been weeks ago.
In terms of bias, the mean poll was off by +1.3%, meaning there was a very slight bias towards the Republicans. The mean absolute value of the polling error was 4.8%. In terms of calling winners and losers, we predicted the Democrats would get 48 seats with two races (Arizona and Missouri) too close to call. It now looks like they will get 47 or 48, depending what happens in Florida. The only states we got really wrong are Indiana, which we thought Sen. Joe Donnelly (D-IN) would win by 1 point and he lost by 8 points, and Missouri, which we called a tie and Josh Hawley won by 6 points. We thought Sen. Bill Nelson (D-FL) would eke out a tiny win in Florida, and he might have if not for the 24,000 people in Broward County who did not vote for senator at all, possibly due to poor ballot design, something the pollsters didn't take into account. So for better or worse, there it is.
At the beginning of the year, the Democrats were wetting their pants and the Republicans were breaking out the champagne because 10 incumbent Democrats were running in states Donald Trump won. In the end, the Democrats won seven or eight of them (depending on Florida) and we called the seven sure winners right. Missouri and Indiana were surprises for everyone (the polls were wrong). We called Florida for Nelson by 2 points, but whoever ultimately wins, it will be by a fraction of 1%, so the polling average was well within the 4% margin of error. (V)
Democrats Knock Off Denham
Another House race has just been called. In CA-10 (PVI Even), Josh Harder (D) beat Rep. Jeff Denham (R-CA) in a closely fought battle. Denham represented part of the Central Valley, east of San Jose. The Democrats also picked up CA-25 (Steve Knight), CA-48 (Dana Rohrabacher), and CA-49 (Darrell Issa). Two other California seats, CA-39 (Ed Royce) and CA-45 (Mimi Walters) haven't been called yet. If the Democrats end up getting those two as well, it may have to consider changing its name from the Golden State to the Blue State. (V)
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