More on Trump's Saturday "Executive Orders"

On Saturday, Donald Trump signed four "executive orders" supposedly banning evictions, deferring payroll taxes, extending supplemental unemployment insurance, and suspending student loan payments. The legality of these orders is in doubt, as some of these things can be done only by laws Congress passes. But now that the dust has settled, people are beginning to go beyond the press release and examine them more closely.

To start with, three of the four XOs weren't even executive orders. Only the one about evictions was an executive order. The other three were presidential memoranda. An executive order is a legally binding directive to federal agencies expressing the president's wishes and his interpretation of how laws should be carried out. They are numbered and published in the Federal Register. They are not laws and must derive their authority directly from the Constitution or from one or more federal laws. Each executive order must state the law or constitutional provision from which it derives its authority. In contrast, a presidential memorandum is typically used to carry out routine executive decisions. They are not numbered and are not published in the Federal Register. Consequently, they are less formal and thus carry less weight than an executive order.

Now let's take a closer look at the four directives. The one actual XO doesn't actually say the nation's 110 million renters suddenly get free rent until the election. It also doesn't ban evictions. What it does is call on HHS Secretary Alex Azar and CDC Director Robert Redfield to consider whether an eviction ban is needed. If they decide it is, then the thorny question of who has the authority to forbid evictions will come up (Hint: Congress). This order also doesn't provide financial aid to renters. It merely directs Treasury Secretary Steven Mnuchin and HUD Secretary Ben Carson to shake their budgets to see if any loose change falls out. Further, this would apply only to renters living in properties that have federally owned mortgages. The result is that 30-40 million renters may be in danger of eviction as soon as October, although that varies from state to state.

Now the payroll tax. The memorandum on the payroll tax doesn't cancel the tax. Trump has absolutely no authority to do that. Even he knows it, as the text of the memorandum makes clear. All the document does is authorize employers to not deduct FICA and Medicare taxes from paychecks now, though they will have to deduct and remit all the back payroll taxes in January (by sheer coincidence, after the election is over). Given that most employers use a computer system to handle their payroll, not making deductions now but keeping track of what will have to be deducted from each employee's first paycheck in January requires software changes. That will take months at best and will probably not give anyone currently working any extra money before the election (and obviously, it does nothing for the unemployed).

Trump is hoping to permanently cancel the payroll taxes as evidenced by a sentence in the memorandum saying: "The Secretary of the Treasury shall explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred pursuant to the implementation of this memorandum (English translation: Steve, go ask Nancy if she will repeal the payroll taxes, and good luck). Getting the House to repeal the taxes that fund Social Security and Medicare is a complete nonstarter. A handful of Democrats want to defund the police but a lot of Republicans want to defund Social Security and Medicare. Neither is going to happen.

Now the $400 supplemental unemployment insurance. This is not a mere continuation of the $600 payments that stopped in July, just with less money. It is effectively a new program, called the "lost wages assistance program," in which the federal government will contribute $300/week to unemployed people and the states have to cough up the other $100. Presidents don't have the authority to set up new programs to spend federal money. Only Congress has that power, so this will certainly be challenged. Also, it will take months for the states to implement the new program. Furthermore, many states don't have any spare money lying around to fund their 25% of the cost. Conclusion: Don't hold your breath waiting for your $400 payment.

Finally, the student loans. This one is probably legal since the Dept. of Education does have the authority to defer or cancel student loan payments to the federal government. What the memorandum does is instruct Dept. of Education Secretary Betsy DeVos not to do anything if former students stop paying off their loans in 2020 and not charge them any interest on the late payments. The amount of debt doesn't change, though. All that really changes is that the former students get a few extra months to pay back the loan.

In short, it is all Kabuki theater. Well, only partly, since in Kabuki the audience knows in advance how it will end. Here we don't. The main thing the four documents achieve is a few days of good headlines for Trump. However, in a couple of weeks, reality will set in when people discover there is no increased paycheck for the employed and no extra $400 for the unemployed. But by then, Trump will have thought of something else to distract people. It's government by smoke and mirrors.

Not everyone likes this kind of behavior, especially when the President is trying to usurp powers that rightfully belong to Congress. Some members of Trump's party (as well as many Democrats) are speaking up. Sen. Ben Sasse (R-NE) said: "The pen-and-phone theory of executive lawmaking is unconstitutional slop. President Obama did not have the power to unilaterally rewrite immigration law with DACA, and President Trump does not have the power to unilaterally rewrite the payroll tax law." Sen. Lamar Alexander (R-TN) put it this way: "The president is doing all he can to help workers, students and renters, but Congress is the one who should be acting." Sen. Lindsey Graham (R-SC), who rarely criticizes Trump, even chimed in to say he "would much prefer a congressional agreement." Rep. Justin Amash (L-MI) compared Trump to a monarch: "Our Constitution doesn't authorize the president to act as king whenever Congress doesn't legislate."

Constitution experts agree. Laurence Tribe, professor emeritus at Harvard Law School called Trump's actions "cynical" as well as "unconstitutional."

Top Democrats lit into Trump, of course. Senate Minority Leader Chuck Schumer (D-NY) told ABC's George Stephanopoulos that Trump's orders are "unworkable, weak, and far too narrow." Speaker Nancy Pelosi (D-CA) was on Fox News to tell Chris Wallace that she was willing to cut $1 trillion from the $3 trillion bill the House passed in May but even this was not acceptable to the White House negotiators. She also said an agreement is needed because children are food-insecure, families are at risk of being evicted, and the virus is moving like a freight train. Hillary Clinton described Trump's moves as "a stunt." A major sticking point is that states are struggling badly and will soon have to lay off personnel. Trump expects the blue states to have bigger problems and is happy to put Democratic governors through the wringer.

Back on Planet Reality, the currently stalemated negotiations are going to have to continue in one form or another, or nothing is going to happen. The unemployed will burn through any remaining savings and people will be evicted in October unless there is a deal. The ball is back in Congress' court, whether it wants it or not. If Saturday's actions spook Congress and there is no deal, the economy will limp along until November and the actions will have been counterproductive since it will have killed off a possible deal. (V)

COVID-19 Cases in the U.S. Hit 5 Million

According to the well-respected Johns Hopkins University dashboard, the total number of COVID-19 cases in the U.S. has now passed 5 million, compared to just over 2,000,000 JHU is reporting for the European Union, which has a larger population than the U.S. (although other sources are reporting higher numbers for Europe). COVID-19 deaths in the U.S. are at 162,000 and climbing by about 1,000 a day. That means by Election Day, the total number of COVID-19 deaths will reach about a quarter million. Former FDA Commissioner Scott Gottlieb put the number at between 200,000 and 300,000 for the year. The top five states for new cases are California, Florida, Texas, Georgia, and Louisiana, in that order. Four of the five are red states that Donald Trump won in 2016. Three are apparently competitive this year.

Europeans are astonished that the U.S. has done so badly in managing the disease. After all, it broke out first in China and then in Italy, so the U.S. had advance warning and could have taken decisive action when it showed up in January. Instead Donald Trump pooh-poohed the whole idea of an epidemic and did nothing until the coronavirus was well established.

In part based on Trump's comments, many Americans are still pooh-poohing the disease. For example, there is Julia Ferjo, a 35-year-old mother of three in Texas who teaches fitness classes. She doesn't even allow participants to wear masks. A bit farther north, in South Dakota, an expected 250,000 motorcyclists are taking part in the annual Sturgis Rally, which could become a superspreader event since few of the bikers were wearing masks. (V)

It's Official: The Election Is Russia vs. China

As expected, Russia is already interfering in the election to encourage doubts and help Donald Trump. From Russian President Vladimir Putin's point of view, the best outcome is a narrow victory for Trump with, say, 55% of the country believing that he stole the election. This gets them a patsy to deal with and has more than half the country wondering whether democracy is still viable.

Last Friday, the intelligence community's top election security official, William Evanina, put out a sharply-worded statement that the intelligence community believes that Russia is actively working to hurt Joe Biden's chances, using a range of measures. For example, a pro-Russia Ukrainian member of parliament is spreading (false) claims about how Biden is corrupt. And, of course, the field is being flooded with disinformation. Sen. Chris Murphy (D-CT), who is privy to classified information on threats to the election, said: "In the briefings that I've received, there's no ambiguity about what the Russians' intention is and there's no ambiguity about what narratives they are pushing." The intelligence community has been walking a tightrope here. They know Russia is trying to help Trump, but if they were to say this out loud, he would go ballistic and possibly do something very dangerous for the country.

Michael Chertoff, who was DHS Secretary under George W. Bush, told CNN yesterday: "It's not so much that they necessarily think they are going to change your vote from one candidate to another. It's about depressing turnout for candidates they don't like and elevating turnout for candidates they do like." Sen. Mark Warner (D-VA), the ranking Democrat on the Senate Intelligence Committee, is pushing to release classified documents that could warn the American people of the Russian disinformation campaign but Trump has no interest in doing that.

So much for Russia, now on to China. NSA Robert O'Brien, a Trump appointee, yesterday appeared on CBS' "Face the Nation," and said of China: "They'd like to see the President lose." Unlike Russia, which would like to sow chaos and have Americans become disenchanted with the whole idea of democracy, China is concerned about trade and wants smoother relations with its best customer. Still, O'Brien said "they've engaged in cyberattacks and phishing and that sort of thing with respect to our election infrastructure, with respect to websites and that sort of thing." So in the end, the election may come down to whether the Russians or the Chinese have the best hackers and how far their masters are willing to go and how fast. One observer in the know said Russia is like a tornado and China is like climate change—slower, but in the end, deadlier.

There is one silver lining in this battle, however. If Biden wins and the Republicans in Congress come to believe it was due to Chinese interference, in 2021 they may suddenly be willing to invest very heavily in cybersecurity, something they have no interest in at all right now because they believe that foreign interference helps them. As soon as they are convinced that it hurts them, then something has to be done about it pronto. (V)

Five States Vote Tomorrow

Five States have primary elections tomorrow. Let's take a look:

• Connecticut: Connecticut was scheduled to vote on April 28. Then it moved the primary to June 28. Then to Aug. 11. Now Joe Biden and Sen. Bernie Sanders (I-VT) can face off again, even though Biden is 600 delegates above what he needs for the nomination. Fortunately, it is still before the Democratic National Convention, but not by much (it starts next Monday). For the first time, the secretary of state mailed every registered Democrat and Republican an absentee ballot application, so no doubt many people have already voted. In fact, there were over 300,000 ballot applications, 10x higher than the previous record. Those who haven't voted yet can vote in person tomorrow.
  
  Unfortunately, 20,000 voters who requested an absentee ballot hadn't gotten it as of a week ago. The mixup was at the state level due to the need for 40 different ballots, which include primaries for the state Senate, state House, and local primaries. It wasn't the fault of the USPS. On the other hand, the secretary of state is not optimistic about the USPS being able to get filled-in ballots back on time, so drop boxes have been installed around the state and voters are being encouraged to use them.
  
  As to the actual races, there are not really any that look competitive.
  
  
• Georgia: Democrats have a runoff in GA-01 (PVI R+9) to see who will face Rep. Buddy Carter (R-GA). If Georgia is hit by a big blue wave, this seat could be competitive, otherwise not. More interesting is the GA-09 runoff for the right to succeed Rep. Doug Collins (R-GA), who is running for the Senate. Andrew Clyde (R) served in the military for 28 years. Then he retired and opened a gun shop. The IRS went after him and tried to confiscate $940,000 using civil asset forfeiture. He was accused of "structuring," to avoid paying taxes and the IRS caught on to it. He won the case, but was so mad that he decided to run for Congress. His top three issues are the Second Amendment, banning all abortions, and supporting Donald Trump. His opponent is state representative Matt Gurtler, who identifies as a Christian, father, and husband, in that order. The district is R+31, so one of them is going to Congress.
  
  There is also a Republican runoff in GA-14, which is R+27. John Cowan is a Trumpy neurosurgeon whose issues are immigration, the economy, and banning abortion. His opponent, Marjorie Taylor Greene, is a real piece of work. She is a full-blown QAnon conspiracy theorist who the Republican establishment does not want anywhere near Congress. Here's a sample of her campaign outreach:
  
  

  I've made all the right enemies.
  
  The Fake News Media hates me.
  Big Tech censors me.
  The DC Swamp fears me.
  
  Now Soros and the Dems are trying to take me down.
  
  I'm running to Save America and Stop Socialism.
  
  Vote Marjorie Greene for Congress on Tuesday!#gapol #ga14 #sass pic.twitter.com/G8ZitYvgOw

  — Marjorie Taylor Greene For Congress (@mtgreenee) August 8, 2020

  
  She's big on white supremacy and anti-Semitism and acts like she is running against Antifa, not Cowan. House Minority Leader Kevin McCarthy (R-CA) has called her views "appalling." Cowan said: "She is not conservative—she's crazy." Facebook took down one of her ads but you can still see it on YouTube. It's only 19 seconds, so take a look. If she wins the runoff (and she was first in the primary), she will be nothing but trouble for the GOP and will star in many a Democratic ad in the fall.
  
  
• Minnesota: Minneapolis was where George Floyd was killed and no one in Minnesota has forgotten that, so while nothing about it is on the ballot, it does permeate the election. The first battle was between the Democratic-Farmer-Laborer-controlled state House, which wanted to go to an all-mail-in election, and the GOP-controlled state Senate, which didn't. In the end, there was a compromise. Any registered voter could vote by mail, but in-person voting is also allowed. Noteworthy in view of the problems at the USPS is that ballots received up to 2 days after Election Day will be counted.
  
  The biggest battle is in the D+26 MN-05 district, with Rep. Ilhan Omar (DFL-MN) facing Antone Melton-Meaux, a progressive Black lawyer. He can be compared to Mondaire Jones and Jamaal Bowman, who won upset victories in New York House primaries. Only he is running against a member of The Squad who has been accused of anti-Semitism.
  
  Another hot race is MN-7, which is R+12, though the current occupant of the seat is 15-term Rep. Collin Peterson (DFL-MN). Republicans think they can finally knock him off. Former Lt. Gov. Michelle Fischbach is the favorite of the Republican establishment. But first she has to get past the 2016 and 2018 candidate, David Hughes.
  
  
• Vermont: Gov. Phil Scott (R-VT) has to fend off four opponents to get the Republican nomination for another two-year term. None of them have a chance. On the Democratic side, there are Lt. Gov. David Zuckerman, former Vermont Secretary of Education Rebecca Holcombe, progressive lawyer Pat Winburn, and former letter carrier Ralph Corbo. The state is very blue but Scott is also very popular. Still, either Zuckerman or Holcombe might have a possible shot at winning if there is a big blue wave.
  
  Rep. Peter Welch (D-VT) is facing a primary challenge—from Ralph Corbo. Same guy who is running for governor. Running for two jobs doubles his chances. Problem is that 2 x 0 = 0.
  
  
• Wisconsin: Wisconsin has a critical shortage of 900 poll workers, so Gov. Tony Evers (D-WI) has called out the National Guard to staff polling places. And this despite a huge interest in mail-in voting. Over 820,000 absentee ballots were sent out and 332,000 have been received as of a week ago. In 2016, 77,000 people voted absentee in the primary.
  
  WI-01 is Paul Ryan's old district. Currently it is occupied by Rep. Bryan Steil (R-WI). It is R+5, so he could be vulnerable. Lawyer Josh Pade is running against national security expert Roger Polack for the Democratic nomination. The winner might have a chance of flipping the district in a blue wave.
  
  WI-03 is a PVI-Even district currently represented by Ron Kind (D-WI). He is facing a challenge from the left from former Franciscan Brother Mark Neumann, who supports Bernie Sanders' agenda. On the Republican side, former Navy SEAL Derrick Van Orden decided to run after Kind voted to impeach Donald Trump. He wants to end the last vestiges of the Affordable Care Act. NRA member Jessi Ebben works in public relations. She was upset over how the confirmation hearings of Brett Kavanaugh were held. She is strongly anti-abortion and opposes judges taking away people's guns under any conditions, even if they are endangering themselves or other people. Given the even PVI, it could be close in November with either of them on the ballot.
  

Next week we have Alaska, Florida, and Wyoming. (V)

Are Mail-in Ballots Bad and Absentee Ballots Good?

Donald Trump has insisted that mail-in votes are bad, while absentee votes are good. Many media outlets have claimed that they are the same, but that is not 100% true. With a mail-in ballot, the four key steps are:

1. You request the ballot
2. When it arrives, you fill it out
3. You drop it in a mailbox
4. You head to your favorite place of worship to pray that the USPS delivers it on time

With an absentee ballot, you can do the same thing, but in many counties you can replace steps 3 and 4 by dropping it in an official ballot drop box, thus keeping the USPS out of the loop and increasing the chance that the ballot is delivered on time. Nevertheless, drop boxes also have issues. Here are a few of them, and what can be done to mitigate them:

• Finding a drop box: Most people over 18 know what a mailbox looks like and where to find one locally. Very few people know what a drop box looks like and where to find one. Not knowing where to drop the ballot is surely going to result in some people not voting. Apps for Android and iPhone showing where they are and giving GPS directions to the nearest one could help here.
  
  
• Fake drop boxes: The Roger Stones of the world will quickly realize that a way to disenfranchise some people is to construct fake drop boxes and place them in urban areas in the hope that people put their ballots in there. Needless to say, these ballots will be shredded or burned at a later date. One way to help reduce this problem is for counties to produce apps and online maps showing where the real ones are and also print paper maps of them to be widely distributed in stores, etc.
  
  
• Theft of drop boxes: Dirty tricksters could steal drop boxes and their ballots. One defense mechanism is to make them very heavy (possibly by preloading them with bricks) and also securely bolting them to a heavy concrete base. Car-type alarms are also a possiblity as well as video surveillance.
  
  
• Tampering: Tricksters could try to jimmy them open and steal ballots while leaving the box bolted to its heavy base. Secure locks and video surveillance could help here.
  
  
• Paint or ink attacks: An attacker could pour paint or ink in the box, invalidating many ballots. A well-designed opening that slants upward could mitigate this. Also, boxes could be emptied at, say, 8 p.m. and locked until morning. During the day, the local Democratic and Republican Parties could each be asked to provide volunteer guards to work 2-hour shifts to watch for shenanigans at each drop box.
  
  
• Firecrackers or firebombs: Someone intent on invalidating ballots could bring a bottle of gasoline and a thin tube and pour the gasoline into the box, followed by a lighted match. Again, video surveillance and human guards could defend the boxes.
  

Despite these problems, a heavy drop box bolted to the ground with a thin opening the thickness of a ballot or a mailbox-type opening plus video surveillance and bipartisan human guards would probably do the job. However, for additional safety, the boxes should be emptied multiple times a day so that an attack will not destroy too many ballots. To make it really safe, there should be two locks with different keys and two people should come empty each box and both should accompany the ballots to headquarters so there is a clear chain of custody involving more than one person.

There is a small potential for legal dirty tricks here. The secretary of state could arrange to have drop boxes widely available in areas that favor his or her party and none in opposition areas. Let them use the USPS and take their chances! Ha!

To decrease the chances of monkey business on the part of the ballot transporters, county officials could place tracer ballots in some known boxes at known times. When they arrived at the office, a worker would check to see if this batch should have a tracer ballot in it and if so, check if it was present. If not, it means the transporters have thrown it out. This tactic and the length of the corresponding prison term should be drummed into the folks doing the pick up to keep them on the straight and narrow.

Drop boxes have been used in the five states that do all absentee voting without too many problems, but all five are good-government states. Not all the swing states fall in that category, and the stakes are immeasurably higher this time, so maximum security is warranted. (V)

DeJoy Reorganizes the Postal Service

Those drop boxes may yet be needed. Postmaster General Louis DeJoy, a major Trump donor who took over the Postal Service in June, announced a sweeping reorganization in the Friday night news dead spot. The top two executives under DeJoy, who run the day-to-day operation of the USPS, were removed. In all, 23 high-ranking executives were reassigned or replaced. The net effects are: (1) to centralize more power in DeJoy's hands and (2) to lose decades of institutional knowledge of how the USPS works.

In addition, DeJoy announced a hiring freeze as well as a program to encourage older employees to take early retirement. These will reduce staffing levels, of course, saving money but also delaying mail delivery.

Democrats are extremely angry with DeJoy. They suspect that he is simultaneously trying to ruin the Postal Service so that private carriers can swoop in and take over all the lucrative parts, and at the same time to potentially help Trump's reelection by creating conditions making it impossible to deliver absentee ballots on time in both directions. Rep. Gerald Connolly (D-VA), who heads the House subcommittee that oversees the USPS, said DeJoy's move was a "deliberate sabotage" of the nation's mail system. In a meeting last week, DeJoy clashed with Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY). Ironically, they are fighting to get Congress to give the USPS an additional $25 billion. Apparently, he is not interested (since that would ruin his plans).

A letter signed by nine Democrats asked the Postal Service Inspector General Tammy Whitcomb to examine DeJoy's actions and their effect on postal service. They also asked her to review the finances of DeJoy and his wife, who are known to have between $30 million and $75 million in stock of companies that are either contractors or competitors of the USPS. To the extent that DeJoy ruins the USPS, it could help competitors whose stock he owns. Add in the possibility of outsourcing work to contractors whose stock he owns, then the possibility of self-dealing and outright corruption stands out like a sore thumb. Help Trump and help yourself. Where have we seen this model before? It makes HUD Secretary Ben Carson's spending $31,500 of the taxpayers' money on a dining room table for his government office look like the height of probity. (V)

Trump Chews Out Adelson

File this one under: "Don't bite the hand that feeds you." With the remaining Koch brother not having the slightest bit of interest in giving Donald Trump's campaign even a nickel, the biggest active Republican donor is Casino magnate Sheldon Adelson. He could easily write a 9-figure check to a Trump super PAC were he so inclined and not even notice some money was missing. So when Adelson called Trump last week to talk about the economy and COVID-19, what did Trump do? Thank him for his unending generosity and remind him how much he supports Israel (pretty much the only cause that matters to Adelson)? Nope. Trump bawled him out for not donating more. Three different sources told Politico that Trump doesn't have a clue how much Adelson has given to the Republicans over the years (including this year) and where they would be without his help.

When word of the call made the rounds, Republican officials got very nervous at the thought of Trump antagonizing Adelson. They need the money—badly. While the Trump campaign has about as much money in the bank as Joe Biden's campaign, Democratic super PACs are outspending Republican super PACs by 3 to 1. That is very worrying to the campaign staff and the thought of Adelson closing his checkbook scares them witless. Since the Democrats are getting their money from small donors, it just keeps coming in. Pro-Biden super PACs have already reserved over $70 million in television time for the fall, compared to $42 million for pro-Trump super PACs.

Other people who have traditionally given the GOP big money are holding back right now for two reasons: business and politics. After word surfaced that fitness company executive Stephen Ross hosted a fundraiser in the Hamptons for Trump, many of the people who use his Equinox and SoulCycle gyms boycotted them and found new places to exercise. Potential donors who run consumer businesses are worried that word of a large donation could leak out and they, too, could be hit with a boycott. In addition, the business executives who might donate to Trump are undoubtedly keenly interested in their return on investment. They see the polls and know that if Trump loses, their return might be zero. In fact, it might be negative if a President Biden decided that giving contracts or tax breaks to big Trump donors wasn't his cup of tea. That doesn't mean they will all sit this one out, though. Some might donate to Senate or House candidates.

But keep in mind, beyond a certain point, the marginal value of another dollar might be a couple of cents. Does anyone seriously believe that if a TV viewer sees 14 Trump ads and 10 Biden ads in an evening, he is going to vote for Trump on account of the four extra ads? That is especially true this year, since the election is going to be a referendum on Trump, and opinions of him are pretty solid already. They could change due to events on the ground, but not due to a few more ads. Also note that Hillary Clinton greatly outspent Trump in 2016. A lot of good it did her. (V)

Trumpworld Is Divided on Transphobia

Republicans love wedge issues. Karl Rove was a master at this, often making sure there was a referendum question on gay rights or abortion in some states with the corresponding "Yes on 4" advertising to drive conservatives to the polls. Since Donald Trump can't very well run on the humming economy, he needs something else. Some social conservatives want to have a rerun of the 2016 North Carolina gubernatorial election, which was largely about a "bathroom bill" that mandated that people could use only the public restroom that corresponded to the gender on their birth certificate. In other words, they want to have Trump dog whistle some form of transphobia to voters to get conservatives riled up to vote.

Conservative activist Terry Schilling has already made up some ads showing a teenage boy beating girls in a wrestling match and then asking: "Is this fair?" Donald Trump's advisers are split on the wisdom of doing this. Not on the morality, mind you, but on the simple question of whether such a campaign will win more votes among bigots than it will lose among those much-wanted college-educated suburban women. A closely related wedge issue is whether minors should be allowed to get gender changing treatments, potentially getting a judge to approve it with the parents in opposition.

Among the people against running transphobic ads are Jared Kushner, Ivanka Trump, and Hope Hicks. These are all young people and know that such a tactic will backfire badly with young voters. Also against it is Pat McCrory, who is 63. He is against it for a different reason. He was the Republican governor who was booted out of the North Carolina governor's mansion in 2016 for defending the bathroom bill.

In favor of using this wedge issue are Donald Trump Jr., HUD Secretary Ben Carson, CEO of Concerned Women for America Penny Nancy, and other conservative culture warriors. Doing so would make Tucker Carlson very happy, since he rails on and on about trans athletes all the time.

To some conservatives, fighting about transgender athletes looks like a final suicide mission in a war that has already been lost. By a wide margin, voters have come to accept same-sex marriage. Supreme Court Justice Neil Gorsuch wrote an opinion in June declaring that companies cannot discriminate against LGBTQ employees. Two-thirds of the country (including 47% of Republicans) oppose Trump's ban on transgender soldiers. Abortion is also widely accepted, although some voters want to place some restrictions on it. Do the Republicans really want to open another front in the culture wars and bet the farm on it?

So far, Trump himself hasn't waded in. It is possible that he is waiting for a Colin Kaepernick moment that he can latch onto and get good mileage from. Doing so would be very much in character and he would no doubt do it with gusto if he decided to do it. But it is also possible that Kushner has warned him that it would drive millennials to the polls in droves and cost him the election. So far he is not going for it, but there is plenty of time to start. (V)

What about the Exit Polls?

Throughout Election Day, Edison Research, on behalf of the National Election Pool, whose members include ABC, CBS, NBC, and CNN, has people standing outside representative polling places buttonholing voters and asking them to answer a few questions about how they voted. A bit under half agree to participate. These are the famous exit polls. In a number of states, as soon as the polls close, some networks call the winner. These calls are based largely on the exit polls, since no votes have yet been counted. They have models that can compare this year's polling to the 2016 polling and go from there. For example, imagine that Hillary Clinton won some key suburban precincts by 3 points in the 2016 exit polls and won the state by 5 points. Then if Joe Biden wins those same precincts by 15 points in the exit polls, a network might be willing to call the state for him even before the first vote is counted.

That strategy could fail spectacularly in 2020 because only a small fraction of the voters will be voting in person on Election Day this year. The rest will vote early or by absentee ballot. The NEP and Edison know this, of course, but knowing it and being able to deal with it are two different things. One thing Edison is going to do is call randomly selected voters in the run-up to Election Day and ask: "Have you voted already?" If the answer is "yes," then the follow-up question is: "By absentee ballot or by early in-person voting?" If the answer to the first question is "no," the follow-up is: "Are you planning to vote, and if so, for whom?" In this way Edison could build a model for:

• Early voters
• Absentee-ballot voters
• Election-Day voters

The trick to making the model is to combine the results of these three categories of voters polled by phone with the exit poll voters and then mix in the 2016 results in the precincts with exit polls. A fair amount of advanced math will be needed. That won't be the problem, though, since every pollster employs statisticians. The hard part will be figuring out how to weigh all the different factors. In a landslide state, say Idaho or Massachusetts, probably all the factors will point in the same direction, so it will be easy. But in the dozen or so states that could go either way, getting it right won't be easy, and the networks will likely be gun shy and not want any "Dewey Defeats Truman" moments. This means the calls may not come on Election Night at all, especially if 70-80% of the votes are from absentee ballots that won't be counted for days and the polling says it's close. Our conclusion is that the exit polls may not mean so much this time and Election Night may last for 72 hours, 96 hours, or even longer. (V)

Today's Presidential Polls

Joe Biden continues to have a modest but consistent lead in these two key Rust Belt states. If Donald Trump loses them, he has to win all the other swing states.

State	Biden	Trump	Start	End	Pollster
Pennsylvania	49%	43%	Aug 04	Aug 07	YouGov
Wisconsin	48%	42%	Aug 04	Aug 07	YouGov

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