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Clyburn: A White Woman Is Also Fine

Earlier this year, Rep. Jim Clyburn (D-SC), the highest ranking black official in Congress, urged Joe Biden to pick a woman of color as his running mate. Biden recognizes that the influential Clyburn saved his neck in South Carolina by endorsing him just in time for him to win the crucial South Carolina primary convincingly and thus revive his near-dead presidential campaign. Biden also knows how politics works and realizes that he owes Clyburn a big one.

Yesterday, Clyburn changed his tune. He told NBC News: "I think having a woman on the ticket is a must. I'm among those who feel that it would be great for him to select a woman of color. But that is not a must." Whoa! that is a 180-degree reversal from what he said earlier. Biden has already said that he would pick a woman. Now Clyburn has given him permission to pick a white one.

Who benefits from this change of heart? The biggest potential winners are Sen. Amy Klobuchar (DFL-MN) and Gov. Gretchen Whitmer (D-MI). Klobuchar is well vetted, experienced in the ways of D.C., and is generally popular with Senate Democrats. She is also moderate, so she won't have any policy conflicts with Biden and the team will have a coherent message. She also benefits from the fact that Biden knows her well from the period they served together in the Senate (2007-2008). Biden is an old-style pol and personal relationships matter a lot to him. Among all the potential veep candidates, his relationship with Klobuchar is the strongest.

Whitmer is not as well known as Klobuchar, but also has pluses. She is younger than Klobuchar (48 vs. 59), and so represents a move toward passing the baton to a younger generation. As a governor, she has executive experience. And most important, she can almost certainly bring in a key swing state. Klobuchar can bring in the Gopher State, but that isn't really a swing state. Biden should be able win that one no matter who the running mate is.

The announcement may also slightly increase the chances that Biden picks Sen. Elizabeth Warren (D-MA). Warren would do much more to unify the party, since she represents the same wing of the party as Sen. Bernie Sanders (I-VT). A big downside, however, is her age (70). Together a Biden/Warren ticket would have 147 years going for them. A ticket pushing 150 does not scream "youth!"

Did Clyburn talk to Biden before making the announcement? The two gentlemen are not saying, but most likely there was a conversation. Why else would Clyburn suddenly change his mind? Probably Biden told the Representative that he has polling showing the white women helping him more than any woman of color and he would like permission to pick one if that keeps up. While Clyburn would certainly prefer a black woman or a Latina, he would prefer a Democratic president even more, so he probably agreed to drop his condition to help the team. Clyburn also implicitly understands that by helping Biden now, if Biden wins, he owes Clyburn two favors. Neither one of them will forget that. It's not a done deal and the vetting process could undo one or more of the candidates. Still, the odds that it will be a white woman just went up. (V)

Biden Might Name Cabinet Officials before the Election

Yesterday Joe Biden said he might announce some of his cabinet picks before November and they could include some Republicans. As we have pointed out before, he really has to make a choice between: (1) hewing to the center and trying to win back the Midwest (where Arizona counts as honorary Midwest), or (2) moving to the left and trying to win North Carolina, Georgia, and Florida. An announcement that he might put some Republicans in the cabinet sounds like the Midwest strategy is winning, especially if that is coupled with Amy Klobuchar or Gretchen Whitmer as his running mate. Young voters are not going to warm to any Republicans in the cabinet, no matter how moderate they are or how unimportant their department, but Republicans and independents in the Midwest who keep asking "Why can't the parties work together?" may be favorably impressed. The answer to that (foolish) question, of course, is that Republicans want to cut taxes on millionaires and billionaires and Democrats want to raise them. Those two positions don't combine well. There are also a lot of other issues, like abortion and global warming, where very little middle ground exists.

It is also at least conceivable that Biden has an ace up his sleeve. Suppose he were to nominate Sen. Ron Johnson (R-WI) or Sen. Pat Toomey (R-PA) to the cabinet? Most senators would see that as a promotion and accept. Johnson is chairman of the Senate Homeland Security Committee in the Senate, so Homeland Security would be an obvious choice and one he might accept since he has some knowledge of the subject matter. He is also on the Commerce, Science, and Transportation Committee, so Secretary of Commerce or Secretary of Transportation would also be attractive to him. Wisconsin fills vacant Senate seats by a special election, so that would give the Democrats a decent shot at flipping the seat, especially considering the results of the recent Supreme Court election there.

Toomey is on the Finance, Budget, Banking, and Housing and Urban Affairs committees. The first three suggest Secretary of the Treasury, but that is too important to give to someone Biden can't entirely trust. However, Secretary of HUD might be worth giving up to gain a Senate seat. Literally anyone can do that job, it would appear, as long as their office furniture is expensive enough. Toomey is up in 2022 and knows Pennsylvania is fundamentally a blue state, despite Trump's microscopic win there in 2016. So a cabinet job might be more attractive to him than running in 2022 and potentially losing. Also, Pennsylvania fills vacant Senate seats by a gubernatorial appointment, so Gov. Tom Wolf (D) would replace Toomey with a Democrat until 2022.

Toomey and Johnson aren't the only Republican senators from states with Democratic governors, but PA and WI are the bluest states and the ones in which the Democrats have the best chance of winning the special election or the 2022 election. Probably next in the list is Sen. Richard Burr (R-NC), who is retiring in 2022 anyway. But Burr was caught in an insider-trading scandal recently and Democrats might not be happy with Biden appointing a corrupt senator to the cabinet.

The governors of Kentucky and Louisiana are also Democrats, but Sen. Mitch McConnell (R-KY) is on the ballot in November and the Democrats have a strong candidate, Amy McGrath, opposing him so that is out of the question. Besides, he probably would refuse, since "cabinet secretary who takes orders from Joe Biden" is rather a step down from "guy who controls the country's entire legislative agenda." No Democrat wants Sen. Rand Paul (R-KY) anywhere near the cabinet room. The two Louisiana senators, Bill Cassidy (R) and John Kennedy (R), are poor choices because Cassidy is up this year and Kennedy's Democratic replacement would surely lose in 2022. From our viewpoint, Toomey is the best choice since it guarantees the Democrats an extra Senate seat. Some Democrats might think it's crazy for Biden to welcome a Republican into his cabinet, but given the potential advantages, crazy like a fox is probably more on the mark.

Maybe we are getting too far over our skis here, but it is also possible that there is a relationship between Clyburn's giving Biden permission to pick a white woman and Biden's announcement that he might disclose some cabinet choices before the election. If he were to pick Klobuchar, Whitmer, or Warren as his running mate, black women—the Democrats' most loyal constituency—will surely be disappointed. Biden could make them feel better if he were to also announce that Sen. Kamala Harris (D-CA) will be his AG. This would be doubly powerful if at the press conference announcing her as the AG-designate, she were to say that her priorities include jailing people who inflict a lot of pain on minorities and poor people, such as payday lenders, employers who violate labor and wage laws, unscrupulous landlords, and the like. After all, while the veep potentially has power in the future, the AG has actual power starting the day the Senate confirms her. (V)

Trump Blasts Parscale

As long as we're looking at some of the behind-the-scenes sausage-making, let's check in with the other presidential campaign. On Wednesday, there were reports from several outlets that Donald Trump had a meltdown over the weekend, and screamed at campaign manager Brad Parscale, threatening not only to fire him, but also to sue him. One can only imagine what possible cause of action the President might have had in mind.

There are, it would appear, two root causes to the President's current level of irritation. The first is that he's doing very poorly in polls, including internal campaign polls. When you get to the last item today, you may get an inkling of the problem. Trump thinks he should currently have Bush 1991 type numbers, not Carter 1978 type numbers. The second is that Parscale is trying desperately to convince the President that the daily COVID-19 briefings are hurting not only him, but Republican candidates up and down the ballot, putting not only reelection but also the Senate at risk. In order to make this point, the campaign manager even enlisted RNC chair Ronna Romney McDaniel. She prepared a presentation for Trump, undoubtedly full of pretty pictures, showing the evidence that the President is shooting himself in the foot on a daily basis.

A Trump meltdown is not an unusual thing, but this story is instructive because it tells us three things:

• Parscale is currently on thin ice: Some Trump insiders survive being in the doghouse (see Pompeo, Mike). Most do not. Given that the President changed campaign managers three times during the 2016 campaign, the current holder of that title probably shouldn't sign any long-term leases.
  
  
• Trump really is behind: If you examine the map at the top of this page, you will see that our model thinks Joe Biden is currently in the lead in the presidential race, possibly by a large margin. Other analysts agree. And, we now know, so do the Republican Party's internal numbers.
  
  
• Battle of the wills: It is crystal clear that everyone in Trump's orbit wants him to stop the daily briefings. It is also clear that Trump does not want to follow their advice. He has convinced himself that the real problem is that he cannot hold rallies right now, and if he could only rectify that, all would be well. Of course, the "it's the daily briefings" position is backed with cold, hard data, while the "it's the lack of rallies" position is backed by Trump's gut, so we have a pretty good idea as to which side has the right of it. Anyhow, if the briefings are shorter, or less frequent, or less unhinged, or stop entirely, we know which side is winning the battle. And if those things don't happen, well, we also know which side is winning the battle.

Beyond holding the briefings (or not), there is relatively little Trump can do to boost his standing with the voters right now (though there is a fair bit he could do to damage himself further). Point is, this isn't going to be the last screaming fit directed at his staffers, who should probably invest right now in some Pepto-Bismol and a nice pair of noise-canceling headphones. (Z)

Fauci Has Some Good News

Anthony Fauci, the government's top expert on infectious diseases, has been bringing bad news for weeks. Now he has some good news for a change. It is that in a large study, COVID-19 patients given the drug remdesivir recovered more quickly, on average, than those given a placebo. That's the best part of the news. Also somewhat promising is that the group taking the drug had a mortality rate of 8% vs. 11.6% in the placebo group. However, this latter result is not statistically significant. Further, a second (smaller) study found none of these things. Needless to say, more studies will be done to see how well the drug really does.

Scott Gottlieb, a former FDA commissioner, said yesterday that the drug is not a "home run," but it could make some outcomes better. That is obviously a good start. Researchers are certainly going to start tweaking the drug to see if they can improve its efficacy. Having somewhere to start is a lot better than having nowhere to start. But once again, the good news is not statistically significant. It could be just a random fluke and not repeatable.

Fauci also delivered some bad news yesterday, as well. He said that if states begin lifting restrictions too early, by the fall and winter, we could be back in the same boat we were a few weeks ago. His good news may also cause the bad news. Some people may hear "one study showed that there is a drug that may help but the effect wasn't statistically significant" as "there is now a cure." Based on their idea that the problem is solved, these folks may engage in bad behavior that causes the virus to spread even more. (V)

Kushner: Much of Country Will Be Back to Normal in June

Yesterday, First Son-in-Law Jared Kushner took time out from his busy jobs of bringing peace to the Middle East, reinventing the federal government, solving the opioid crisis, and handling the coronavirus to announce that by June, everything will be hunky dory and we can all go back to our pre-pandemic routines. It is certainly possible that the federal government will drop all restrictions and allow almost everyone to go back to work, but things will be far from hunky dory. If restaurants, movies, concerts, festivals, sporting events, and the like all go back to their pre-pandemic norms, the virus will spread like wildfire and take the country down again. Public health authorities have strongly cautioned against this.

By June, many states will have dropped some restrictions, but certainly not all, and life will absolutely not be back to normal. Why is Kushner saying something that is almost certainly nonsense? Could it be that his father-in-law whispered something in his ear instructing him to say this? Who knows? Will he look stupid when his prediction does not come true? Of course. Does he care? Probably, but making a fool of yourself is all in a day's work in this administration. (V)

How the Election Could Be a Disaster

No, we don't mean that Joe Biden/Donald Trump (please choose only one) is elected. We mean that the entire process of registering and voting is deeply flawed. We have covered election security on this website quite a bit, because one of us (V) is obsessed with it and sees problems down the road. Now Politico has a long article about election security and what could go wrong unless people start paying attention pronto.

Some people have worried about Trump canceling the election, but he doesn't have that power. The states would just hold the election as scheduled, no matter what he says (at least, the ones with Democratic governors and some of the ones with Republican governors). The real problem is the risk that the election is held and is a mess. The nightmare scenario is that voters don't want to vote in person because they are afraid of getting COVID-19. So the more politically savvy ones request absentee ballots, but election officials can't manage the flood of applications and, in addition, there aren't enough ballots or envelopes. Furthermore, the cash-strapped U.S. Postal Service might not be able to handle the inbound flood of ballot requests, the outbound flood of blank ballots, and the inbound flood of filled-in and signed ballots.

Politico had a conversation with Prof. Rick Hasen of the University of California, one of the top election law experts in the country. He expressed concern that Trump could declare an emergency and try to shut down cities just before Election Day, so no one could vote in person. State legislatures could then pass a law giving themselves the power to appoint the presidential electors. This has a whole gaggle of complications, though. First, many absentee ballots will already have been cast. Theoretically, the new law could say they don't count. That would not be popular, to say the least, and may not be legal. Also, it is not known whether the legislatures would have to pass a law, which would require either the governor's signature or, absent that, a vote to override his veto. Or maybe they could just appoint the electors without consulting the governor. This matters in Michigan, Wisconsin, and Pennsylvania, all of which have a Republican legislature and a Democratic governor. The Constitution is ambiguous on this point. Art. II Sec. 1, clause 2 states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Normally, legislatures do things by passing laws, which is a well-defined process. But the Constitution is a bit vague here about how the legislature may "direct" the appointment of electors. On top of that, there is some federal jurisprudence suggesting that, having given over the choice of electors to voters, the legislatures cannot take it back, whether by law or fiat. And finally, the secretary of state is the only one who can produce the Certificate of Ascertainment, which the governor has to sign and send to Congress to count. Suppose the secretary refuses to produce and/or the governor refuses to sign one certifying the electors the legislature handpicked and instead sends one off based on the (largely absentee) vote? Now suppose the speaker of the state House writes up his or her own version and sends it off? Then Congress will be handed this hot potato, assuming there is a Congress. In short, while Hasen might be right to be worried, there are too many obstacles here for it to be a viable path for stealing the election without a massive fight. If you happen to know Chief Justice John Roberts, you might advise him to keep his agenda empty for Jan. 6, 2021 (the day Congress officially counts the electoral votes).

Hasen is also concerned about the speed of vote counting. Suppose that there are huge numbers of absentee ballots and at 9 a.m. on Nov. 4, Trump is leading in Michigan and Pennsylvania, with large numbers of absentee ballots yet to be counted. Based on these returns, Trump declares that he won. Five days later, the states say that Biden won, and Trump claims that they committed fraud. Maybe two slates of electors gather in the state capitals on Dec. 14 and their respective electoral votes get sent to Congress. Again, the ball is in Congress' court.

In a slightly different vein, another thing Hasen is concerned about is voter registration. People move and need to reregister. A lot of it happens with deputy registrars or the equivalent standing outside shopping centers with blank forms eligible unregistered voters can fill out and sign. That probably won't happen much this year. And going to a government office to register won't work if the office is closed. The consequence is that many eligible voters may not be able to register or vote. All in all, there are several ways things could go terribly wrong. (V)

Some States Are Starting to Use Internet Voting

We're not done with the horror stories quite yet. If the country wants to end democracy in one swift blow, hacked Internet voting with no paper trail is definitely the way to go. It's beyond anything Vladimir Putin could dream of, and he may get it. Just imagine: Donald Trump wins a surprising number of close states, despite polls up to Election Day showing Joe Biden with wide leads. No one can explain it, but the computers say Trump won them all somehow.

States understand that in-person voting is going to be a problem and absentee ballots have some issues, so they are starting to experiment with Internet voting, despite howls of protest from cybersecurity experts who say it is a horrible idea and cannot be made safe with current technology. Maybe with biochemical computers in 2048 or 2064, but not now.

Two states, West Virginia and Delaware, are already implementing Internet voting for some disabled voters, military voters, and overseas voters. New Jersey is also considering it. The system is being designed by a Seattle-based company, Democracy Live, which naturally says it is safe. Their claim is based on the fact that election officials must print the ballot before it is counted. Of course, that doesn't prevent (Russian) hackers from capturing it in transit and modifying it before it arrives and is printed. That's the vulnerability.

Of course, it can be encrypted in transit, but encryption is only as good as the security of the encryption keys and that is always the problem. To encrypt a ballot, the voter's computer will need to get an encryption key. The hacker could try to trick the voter's computer into downloading a fake key supplied by the hacker. Then the hacker can decrypt the ballot, change it, reencrypt it with the proper key, and send it off to the state. This is called a "man-in-the-middle" attack.

Another route hackers could go is to spread computer viruses and other malware widely. The malware on an infected computer could capture and modify the voter's ballot just after it was filled in but before it was encrypted for transmission to the state. Then it wouldn't be necessary to pull off a man-in-the-middle attack. So far, no studies have been made about the effectiveness of remdesvir on computer viruses, but we have our doubts. Given that several hundred of Russia's smartest hackers are already hard at work on this issue, there are almost certainly other vulnerabilities that can be exploited.

The problem here is that various players are involved and none of them know much, if anything, about security. Election officials see all the problems with absentee ballots that we have discussed repeatedly. Advocates for the disabled and military voters want those folks to be able to cast ballots easily. They are not security experts and just (unwisely) assume security is an easy add-on feature. Security experts know that making things secure on the Internet is exceedingly difficult. Consider, for example, that many banks and credit cards now use two-factor authentication. To log in, a user has to enter a password, but also a six-digit code sent as a text (SMS) message because the banks know that passwords are not secure, even though the connection uses https, and is thus encrypted.

Even a small number of (contested) Internet ballots could wreak havoc in a close election, with cybersecurity experts pointing out all the ways they could have been tampered with, but with there being no way to verify the ballots. Election officials would have no choice but to count the actual ballots. Internet voting is much worse than using voting machines without paper audit trails precisely because the Internet ballots do have a paper trail, but one that provides only the illusion of security. Since there will be paper ballots, many people will believe they must be valid because they don't understand how a hacker could have modified them before or while in transit (or possibly while being stored, although that is less likely). All in all, these are huge dangers, but election officials are oblivious to the dangers. Making it easier for disabled voters to vote is important, of course, but unsafe Internet voting isn't the way to do it. (V)

Appeals Court Rules Against Kansas Law Intended to Disenfranchise Voters

When Republican Kris Kobach was Kansas' secretary of state, he got the legislature to adopt a law in 2013 requiring people to show passports or birth certificates when registering to vote. The clear intention was to make it harder for people, especially poor people, to register and vote. Yesterday, the U.S. Court of Appeals for the 10th Circuit took an axe to the law, which has disenfranchised about 30,000 voters in recent years.

When asked about the court's decision, Kobach said: "The opinion is clearly wrong and I have a high level of confidence that it will be overturned by the Supreme Court if the Attorney General appeals it to the Supreme Court." He is almost certainly right that the case will go to the Supreme Court. What happens there and when is uncertain, but a decision before November is unlikely. (V)

Appeals Court Rules in Favor of Florida Ballot Order Law

For nearly seven decades, the state of Florida has had a law on the books that grants candidates from the same party as the governor the first spots on the ballot in all of the various races for office. A consortium of voters and voting-rights groups sued to overturn that law last year and won. However, on Wednesday, a three-judge panel from the 11th Circuit Court of Appeals reversed that decision, on the basis that the plaintiffs lacked standing to file the suit. One of the three judges wrote at length in support of the ruling, a second concurred but had nothing to add, and a third partially concurred and partially dissented. We bet you can guess which of those was a George W. Bush appointee, which was a Donald Trump appointee, and which was a Barack Obama appointee.

The reason that Republicans have been fighting so valiantly for the law is the ballot order effect. We've mentioned this before but, in short, the first spot on the ballot is an advantageous position, as studies have shown that the candidate in that spot gets "bonus" votes that they would otherwise not have gotten. Wednesday's decision, as everyone reporting on it noted, means that the very first name on the Florida ballot in November will be Donald J. Trump, followed (somewhere lower on the ballot) by Joseph R. Biden.

So, the President just got a bonus—possibly a decisive one—in a state where elections tend to be decided by the thinnest of margins? That is certainly what many Democrats were complaining about, and many Republicans were breathing a sigh of relief over, on Wednesday night. Don't believe it, though. First of all, there is no agreed-upon figure for how significant the effect actually is. You'll sometimes see a figure as high as 5%, or one as low as less than 1%, with 2% being the most commonly cited estimate. But the truth is, nobody really knows, in part because the extent of the effect varies depending on the specifics of the race.

And that brings us to the second reason that this decision isn't as consequential as it seems. The ballot-order effect is a downballot effect. The basic dynamic is that people vote in the major races, and then: (1) get to candidates they know nothing about, and/or (2) start to feel time pressure because their parking meter is running out, or their kids are home alone, or they feel guilty about people waiting in line for their turn, or for some other reason. So, some of them rush the job by just checking the first available option for the downballot contests.

Truth be told, it's not even clear that the ballot order effect even matters all that much in most downballot races anymore, excepting maybe nonpartisan ones. These days, with hyper-polarization, the (R) or the (D) after candidates' names affords an even more satisfactory shortcut than "pick whoever is first." And there is virtually no data about how pronounced the effect is with absentee ballots (of which there will be many this year), since folks voting that way won't feel time pressure and will have time to figure out who all the candidates are. In any case, multiple studies (such as this one) have made clear that for major races, like president and senator, the effect is negligible-to-nonexistent. So, the Florida presidential race is really no different today from what it was at this time yesterday. (Z)

Today's Presidential Polls

Above we alluded to polls that may have caused Donald Trump to blow a gasket. Take a look at these, for starters. The GOP was hoping to flip New Hampshire, which is mostly blue, but a bit swingy. One state that was most definitely not in the "kind of swingy" column was Texas. Everyone knows that due to demographic changes, Texas will likely one day become a purple state, but most observers were thinking 2028, not 2020. If the PPP poll is correct—and remember, this is just a single poll—Texas is now a statistical tie. If so, then Trump has plenty of reason to be yelling at Parscale. The last thing he needs is having to spend money defending the Lone Star State. Every penny spent advertising in Dallas is a penny he can't spend advertising in Phoenix or Milwaukee or Charlotte. Before breaking out the champagne or crying in your beer, as the case may be, let's wait for some more Texas polls before drawing any conclusions, though. (V)

State	Biden	Trump	Start	End	Pollster
New Hampshire	50%	42%	Apr 23	Apr 27	St. Anselm College
Texas	47%	46%	Apr 27	Apr 28	PPP

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