SCOTUS News, Part I: States Can Punish Faithless Electors

The Supreme Court's docket for the current term included two cases related to faithless electors from 2016. One of those, Chiafalo v. Washington, involved three Washington state electors who voted for candidates other than Hillary Clinton, and who were each fined $1,000. The other, Colorado Department of State v. Baca, involved a Colorado man who voted for John Kasich (instead of Clinton), and who was replaced with an alternate elector by Colorado Secretary of State Wayne Williams. On Monday, the Court ruled 9-0 in favor of Washington, and 8-0 in favor of Colorado (Sonia Sotomayor recused herself). In other words, SCOTUS declared unanimously that states are free to punish faithless electors as they see fit.

This result was pretty much a loss for everyone, regardless of their feelings about the Electoral College. The plaintiffs who brought the case, under the guidance of Harvard Law's Lawrence Lessig, were trying to render the whole system absurd in hopes that it would motivate Americans to support the elimination of the EC. Obviously, that did not happen. And for those who thought they might at least exploit a loophole or two, say by passing a law that says that electors can only vote for candidates who release their tax returns, the Court specifically put the kibosh on that. Justice Elena Kagan, writing for the majority, declared that states cannot impose "new requirements on presidential candidates."

Meanwhile, for folks who think the Electoral College is fine and dandy, Monday's ruling didn't actually stabilize things all that much. It is true that states now have the Court's blessing when it comes to compelling faithfulness among electors. However, it is also true that only 32 states (plus the District of Columbia) have such laws. In 16 of those (plus DC), there's no actual penalty for going faithless. In another three, the only penalty is a fine. So, there are just 13 states right now—WA, NV, MT, UT, CO, AZ, NE, OK, MN, MI, IL, NC, and ME—where an elector who casts the "wrong" vote can be overruled. That's 124 EVs, leaving 414 for shenanigans. One day, a political party may decide that in an era where presidential campaigns cost north of $1 billion, paying $5 million per EV for, say, 100 EVs is a relative bargain.

The decision doesn't unambiguously say that a state can nullify an electoral vote that doesn't align with the state especially if the elector doesn't announce his or her vote in advance, although it didn't object to the Colorado secretary of state refusing to certify a faithless elector's vote and replacing him with an alternate elector. However, the decision does clearly say that a state can make faithlessness a crime and punish an elector after the fact. But if the fine is $1,000 that is not going to deter a lot of electors. Of course, if a state were to raise the ante a bit by making the penalty death by firing squad or 50 years in state prison, that might make most electors think carefully before going rogue. And as mentioned above, most states don't have laws that punish or replace faithless electors, so their new power to pass such laws won't matter if they don't want to. (Z)

SCOTUS News, Part II: No Robo-calls to Cell Phones

This gets a little weedy, so bear with us. Since 1991, when the Telephone Consumer Protection Act was passed, it has been illegal to robo-call cell phones for any reason. That does not mean that cell phones cannot be cold-called, merely that the dialing has to be done by a human being, and not a computer. In 2015, Congress passed an update to the law that granted an exception to the law to government debt collectors (for example, if someone owes student loan debt). On Monday, the Supreme Court struck that exception down, with 5 justices in the majority, and the other 4 partly concurring and partly dissenting.

This ruling is significant for two rather different reasons. The first is that folks in the polling and political marketing business—who actually brought the suit—were hoping that a victory would open the door for robo-call polls, and robo-call political pitches. They did not get their victory, so the robo-call political stuff won't be happening.

Second, the decision was rooted in the doctrine of severability, which is the notion that courts can strike down part of a law while leaving the rest intact. Brett Kavanaugh, writing for the majority, laid this out in Part III of the decision. The concurrences by the four liberal justices also embraced severability. Neil Gorsuch's partial dissent objected to this, and Clarence Thomas concurred only with Parts I and II of the majority ruling (but not Part III), while also concurring with the portion of Gorsuch's dissent that criticized severability. In case you are having trouble keeping score, that's 7 justices who accept severability, 2 who do not. The mega-case on next term's docket—whether Obamacare should be allowed to stand or not—is almost entirely about severability. So, Monday's decision may have given us a glimpse of the future.

Of course, the first thing the Court has to do is finish this term; normally they've packed up and left for the summer by the time July 4 rolls around. And the case that everyone is waiting for is the one involving Donald Trump's tax returns. Presumably, we'll be getting that one sometime later this week. (Z)

Trump Doubles Down...

Given the speech that Donald Trump gave at Mt. Rushmore this weekend, as well as the campaign he's running, it was only a matter of time until he waded right into the debate over name changes for the baseball team in Cleveland and the football team in Washington. And, on Monday, he made it official:

They name teams out of STRENGTH, not weakness, but now the Washington Redskins & Cleveland Indians, two fabled sports franchises, look like they are going to be changing their names in order to be politically correct. Indians, like Elizabeth Warren, must be very angry right now!

— Donald J. Trump (@realDonaldTrump) July 6, 2020

Adding that slur against Sen. Elizabeth Warren (D-MA) in there, particularly since this was in among a slew of tweets about the "Chinese virus," really makes clear how much he is actually concerned about the feelings of Native Americans.

If that were not enough, the President also decided to take a potshot at NASCAR, and its only black driver, Bubba Wallace:

Has @BubbaWallace apologized to all of those great NASCAR drivers & officials who came to his aid, stood by his side, & were willing to sacrifice everything for him, only to find out that the whole thing was just another HOAX? That & Flag decision has caused lowest ratings EVER!

— Donald J. Trump (@realDonaldTrump) July 6, 2020

For those readers unfamiliar with this story, NASCAR recently banned Confederate flags at its events, something that—as a private business, not unlike a Major League or NFL team—is entirely within their rights to do. Shortly thereafter, a cord tied in the fashion of a noose was discovered in the garage of Wallace, and was reported to NASCAR (though Wallace himself never saw it, and did not do the reporting). After an investigation, by both NASCAR and the FBI, it was determined that the noose was placed in the garage before it was assigned to Wallace, and so was not intended as a message for him personally. The driver acknowledged the results of the investigation, said that "I think we'll gladly take a little embarrassment over what the alternatives could have been," and everyone who is not the President of the United States moved on.

Trump's opinion on the team names is not wildly outside of the mainstream, though is probably the minority position these days. His opinion on Bubba Wallace, by contrast, is fringy and overtly racist. This left White House Press Secretary Kayleigh McEnany scrambling to try to explain the remarks. As the occupants of that job tend to do these days, she chose dishonesty and dissembling. McEnany claimed that the FBI said the noose was not a deliberately racist act. In fact, the FBI said no such thing. It was NASCAR that said that, and their full conclusion was that it was not a deliberately racist act...against Bubba Wallace. If the Press Secretary had paused to think about it for two seconds, it is all-but-impossible to tie a noose and leave it hanging in a public place and not have it be a racist act. McEnany also said that it would be nice if Wallace acknowledged the results of the investigation (which, as noted, he has). And she concluded by asserting that Trump wasn't "making a judgment one way or the other" on Wallace or NASCAR, he was merely sharing an interesting fact about the racing series' ratings. Uh huh.

All of this came as the Trump administration was also taking steps to double down on its nativist posture. Sometime this week, the White House is expected to file paperwork asking the Supreme Court to reconsider the end of DACA. Obviously, the Court won't hear the case this term, and so the only purposes here are: (1) to give the President a "promise" to run on, and (2) to grease the skids if he is indeed reelected. This is another place where he is taking the minority position; a Pew Research poll last month revealed that 74% of Americans overall, including 54% of Republicans, not only favor DACA, but would like to see recipients given a path toward citizenship.

In addition, the administration also announced on Monday that, allegedly because of COVID-19, international college students whose classes are entirely online would not be granted visas to live in the United States. The COVID-19 excuse doesn't hold much water, in part because any threat can be mitigated with a quarantine, and in part because this administration only acts as if the disease is a threat (or that it even exists) when it happens to serve their needs. This is clearly the handiwork of Stephen Miller, and reflects a deliberate ignorance of the reality on the ground. To wit:

• Some universities are going to start the fall semester/quarter online, but are reserving the right to transition partway through, if events warrant.
  
  
• Many universities will offer some small percentage of classes (seminars, labs) in person, but a student might not know if they've managed to get enrolled in these until the semester starts (or for a couple of weeks thereafter).
  
  
• Many universities will be back to in-person instruction in January; it's not so easy to find a lease from January to May, or January to June.
  
  
• For many students, one of the goals is to achieve fluency in a second (or third, or fourth) language, something much harder to do if you cannot interact with native speakers.
  
  
• Students may have activities/responsibilities (say, student government) that will be in-person, even if classes are online.
  
  
• For online classes that are synchronous (everyone online at the same time), a student in Asia might find themselves "in class" from, say, midnight to 5:00 a.m.

Add it up, and many international students might conclude it's just not worth it. And since they generally pay more tuition than citizen students, that could take a big bite out of university budgets at a time when things are already shaky. This, in turn, could put pressure on universities to offer more in-person courses than they would otherwise prefer to do, so as to rescue both budgets and students' educational experiences.

Of course, the roughly 1 million international college students expected to matriculate this year cannot vote, whereas the considerably more than 1 million nativists in Trump's base can, and that's the only calculation that matters to the President. (Z)

Democrats Smell Blood in the Water

Donald Trump is running a campaign in 2020 that seems to come straight out of 1920, a time when the second incarnation of the KKK was at its height, a red scare was underway, there was much violence in the streets, and the attorney general was acting as personal hatchet man for a president who disliked foreigners.

That sort of campaign worked in 2016...sort of. As everyone knows, Trump won by the skin of his teeth, and up against a historically unpopular opponent. And instead of concluding that maybe he should hew more toward the center this time, he seems determined to be even Trumpier. For example, do you imagine that, if the pu**y grabbing video emerged today, as opposed to four years ago, he would apologize for it? In any event, given the shifting demographics of the United States, another campaign rooted in racism and xenophobia sure seems like a loser this time, incumbency or no.

This is the basic dilemma faced by many Republicans who are running for office this year. Maybe, if things break just right—the economy bounces back a bit, Democratic voters get overconfident, Howie Hawkins is unexpectedly popular, it snows in Detroit and Milwaukee and Philadelphia on Election Day, the moon is in the seventh house and Jupiter is aligned with Mars—Trumpism might carry one more presidential election. However, there are many states and Congressional districts where it won't get it done, particularly since the racism and the xenophobia have driven vast numbers of white-collar suburbanites out of the Republican Party (maybe for good). The GOP is already going to be stuck with a bunch of fringy right-wingers who are poor matches for the House districts they are trying to win. And many of the more reasonable/electable Republicans can either hug Trump close, and potentially go down with a sinking ship, or they can push him away and risk a tweet of death (and the possibility of being primaried).

Meanwhile, the Democrats are liking what they see very much, such that they are beginning to think big—very big. They got caught flat-footed in 2010, allowing Republicans in many states to seize control of the redistricting process, and to gerrymander things six ways to Sunday. This year, the blue team isn't going to make that mistake. They're going to make sure that they have candidates in as many races—state senates, state legislatures, county supervisors, city dogcatchers—as is possible, and that the truly viable ones get money and other support. Meanwhile, there are other reasons they think 2020 could be the Republicans' Waterloo:

• The current iteration of Trumpism will be toxic in much of the country
• Democratic fundraising, and volunteer interest, far outstrip the Republicans' this year
• Republicans are going to spend a lot of money and effort defending what are supposed to be "safe" seats
• The RNC was once a tightly-run ship, but now that it's a branch of the Trump Organization, not so much
• Unlike 2010, 2020 is a presidential election year, and Joe Biden's coattails could be very long
• Biden is taking much more interest in downballot races than Barack Obama did
• Gerrymanders are meant to keep incumbents safe in close elections, but they turn disastrous in landslides

Add it up, and the Democrats think that the White House, the Senate, many state houses, and 400 EVs are all plausible. That's rather optimistic at this point, especially the 400 EVs. Still, it's becoming very clear that 2020 isn't going to be about maximizing gains for the Republicans, it's going to be about minimizing losses. The big question is whether more of the movers and shakers make the same decision that Rep. Liz Cheney (R-WY) seems to have made, and decide that the Party is better off abandoning Trump (and the White House) in hopes of protecting its flanks elsewhere. (Z)

Veepstakes Is in Full Swing

Thomas R. Marshall, VP under Woodrow Wilson, liked to say: "Once there were two brothers. One ran away to sea, the other was elected vice president, and nothing was ever heard of either of them again." And everyone knows about John Nance Garner, VP under Franklin D. Roosevelt, and his comparison of the office to buckets full of warm bodily fluids. But you would never guess that the job is the ugly stepchild of American politics based on all the prominent folks who are jockeying for it.

To start, former NSA Susan Rice—who seems to be rising up many people's lists—appeared on "Meet the Press" on Sunday, and said that while she's never actually run for political office, she still has plenty of campaign experience, as she has "worked on multiple campaigns." She also said that if Joe Biden honors her by choosing her as his running mate, "I will do my utmost, drawing on my experience of years in government, years of making the bureaucracy work."

And then there is Sen. Tammy Duckworth (D-IL), who is also on many Democrats' short lists. She too appeared on TV on Sunday, stopping by CNN's "State of the Union" for a chat. When asked about the VP slot, she said "The Biden campaign have their own process that they're going through, and I'm sure Vice President Biden will pick the right person to be next to him as he digs this country out of the mess that Donald Trump has put us in." She also acknowledged that Black women are "key to the victory for Democrats," but said that did not necessarily mean that Biden's running mate needs to be a Black woman. Duckworth, as you may have noticed, is not a Black woman.

Meanwhile, Atlanta Mayor Keisha Lance Bottoms (D), who is regarded as a frontrunner for the #2 spot, announced on Monday that she has been diagnosed with COVID-19. Undoubtedly, she did not contract the disease as a means of advancing her political fortunes. However, the news advances her political fortunes nonetheless. One of the main jobs of the VP candidate is to be an attack dog, and one of the things the Democrats are going to hit Trump very hard on is COVID-19. A person who has had the disease is going to have more credibility, as simple as that. So, Bottoms inadvertently picked up another selling point.

Biden said he would decide in early August, so we have about four more weeks until this particular question is answered. And until then, the Sunday morning news programs are going to have no difficulty filling their guest spots with impressive female Democratic politicians. (Z)

Two More States Vote Today

Delaware was originally supposed to hold its primary on April 28, and New Jersey was originally supposed to hold its primary on June 2, but because of COVID-19, both were rescheduled to today.

Nearly all of the interesting stuff is in New Jersey. The Garden State has struggled with the shift to vote-by-mail, and also had a ballot fraud scandal in the run-up to the election. The scandal only involved four people, and the fact that it was caught suggests that anti-fraud measures are working. Still, lots of folks—including the one who resides at 1600 Pennsylvania Avenue, and has already tweeted about what happened—will be watching for the slightest sign of shenanigans.

Beyond the ballot issues, there has been, and will continue to be, much drama in NJ-02. That district is represented by Rep. Jeff Van Drew (R), who was a (D) until Jan. 7 of this year, when he switched parties in protest of impeachment. Given what has happened since, that move is not looking like a real winner. There are five Democrats angling to take him on in the R+1 district. The two frontrunners are political science professor Brigid Callahan Harrison, who teaches at Montclair State University, and Amy Kennedy, who is indeed a member of that Kennedy family by virtue of her marriage to former representative Patrick J. Kennedy. Harrison is the more moderate candidate, while Kennedy's got flashier endorsements, so it could be close.

NJ-03 is, like NJ-02, slightly Republican by PVI (it's R+2). Unlike NJ-02, its representative has remained a member of the Democratic Party. That would be Andy Kim, who flipped the seat in 2018. There are only two Republicans looking to take him on: Burlington County Freeholder (basically, county supervisor) Kate Gibbs and businessman David Richter, who ran a construction consulting firm called Hill International. Gibbs was cruising until Richter dragged up a few skeletons from her closet, namely past arrests for shoplifting and possession of marijuana. Now, it appears to be anybody's race.

There are also a few New Jersey Democrats who are at risk of being primaried, particularly Rep. Josh Gottheimer, who has charted a pretty centrist record since flipping NJ-05 back in 2016. Glen Rock council member and neuroscientist Arati Kreibich thinks Gottheimer has been a little too centrist. We'll see if Democratic voters in the district agree.

In Delaware, meanwhile, today's primary is presidential only. Even when the state's voters pick candidates for other offices (on Sept. 15), it's hard to find anything much to get excited about. Sen. Chris Coons (D) and Rep. Lisa Blunt Rochester (D) are both popular, are both running for reelection, and represent a state that is D+6. In other words, all we're going to find out is who exactly their victims will be in November. Coons' likely opponent is the Trump-loving Lauren Witzke, and Rochester is likely to be matched up against actor Lee Murphy, whom she also beat in 2018. None of the folks running to challenge Coons/Rochester has ever held political office, which means they're really more qualified to be president than a member of Congress.

And finally, another result from last week has been announced. Former Utah governor Jon Huntsman (R), who was once wildly popular in the Beehive State, has been defeated by Lt. Gov. Spencer Cox, 36.4% to 34.6%. It would appear that some Utahns don't care for someone who served in the Obama administration, and others don't care for someone who served in the Trump administration. Presumably this is the end of the line for Huntsman's political career. (Z)

Mary Trump Book Will Drop Two Weeks Early

Simon & Schuster, which is publishing Mary Trump's memoir/takedown Too Much and Never Enough: How My Family Created the World's Most Dangerous Man, announced Monday that they would be moving the book's publication date from July 28 to July 14.

The publisher's thinking here is plain. First of all, they want to minimize the amount of time available for more court rulings, any one of which may be adverse to publication. Indeed, if they are to get the book in stores (and in mail-order customers' hands) by next Tuesday, they will have to start distributing copies today (if they haven't already). So, the die is effectively cast, and the book is not going to remain under wraps, despite the efforts of Donald Trump and his brother.

A second benefit to moving up the publication schedule, of course, is that sales will likely get a boost from all the recent lawsuit-related publicity. Third, and finally, this maneuver will help to blunt the impact of pirated copies on file-sharing sites, particularly if Simon & Schuster has reason to believe that there are some of them already out there.

We already know the broad outlines of what the book says (the President is psychologically damaged, and has been since he was a kid). It will be interesting to see if Donald Trump can control himself, or if he feels the need to jump on Twitter and blast the book, thus giving it even more publicity (hint: he can't control himself). It will also be interesting to see what argument(s) Mary Trump uses when it comes time to figure out if she violated her NDA. (Z)

Today's Presidential Polls

Is winning Maine by 11 points enough to win all four of the state's EVs? Maybe so; when Hillary Clinton went 3-1 in 2016, she won the state overall by just three points. (Z)

State	Biden	Trump	Start	End	Pollster
Maine	53%	42%	Jul 02	Jul 03	PPP

Today's Senate Polls

It sure looks like Sen. Susan Collins (R-ME) is going to rise or fall with Donald Trump, since their support is identical, or nearly so, in most polls. We don't think that's a good position for her to be in (see above). She clearly doesn't think so, either, which is why she's tried (unsuccessfully, thanks to Brett Kavanaugh) to keep a little space between herself and the President. (Z)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Maine	Sara Gideon	46%	Susan Collins*	42%	Jul 02	Jul 03	PPP

* Denotes incumbent

---

If you wish to contact us, please use one of these addresses. For the first two, please include your initials and city.

• questions@electoral-vote.com    For questions about politics, civics, history, etc. to be answered on a Saturday
• comments@electoral-vote.com   For "letters to the editor" for possible publication on a Sunday
• corrections@electoral-vote.com To tell us about typos or factual errors we should fix
• items@electoral-vote.com            For general suggestions, ideas, etc.

To download a poster about the site to hang up, please click here.

---

Email a link to a friend or share:

---The Votemaster and Zenger