Ruth Bader Ginsburg Passes Away

Associate Justice Ruth Bader Ginsburg, one of the towering figures of Supreme Court history, passed away at the age of 87 on Friday. She fought the good fight against a host of maladies for more than a decade, but the latest recurrence of cancer proved to be too much to overcome. May she rest in peace.

Ginsburg was the second woman appointed to the Court, and served just over 27 years. She was also a brilliant legal mind who authored a number of important opinions, including the ones that forbade discrimination on the basis of sex at military schools, and that prohibited discrimination against those with mental disabilities. The Justice was a throwback to a previous era, when the Supreme Court was less overtly politicized. After nomination by Bill Clinton, she was approved 96-3 by the Senate, a tally that would be inconceivable for nearly any justice today, particularly one so liberal as she. Ginsburg was famously collegial with all of her colleagues and, despite their polar opposite political philosophies, had an especially close relationship with Justice Antonin Scalia. Both of them loved Italian operas and they often went shopping together when they traveled. They even spent New Year's Eve together many times. One time when they rode an elephant together in India, Scalia was up front. When asked about feminism, Ginsburg quipped: "It's about weight distribution."

Uniquely among SCOTUS justices, Ginsburg emerged in the last decades of her life as a pop culture and feminist icon under the moniker "The Notorious RBG" (a play on the stage name of rapper Christopher Wallace, a.k.a. "The Notorious B.I.G."). She embraced her unexpected celebrity with good cheer, and kept a supply of Notorious RBG t-shirts to give out as gifts. For a fuller biography of Ginsburg, we recommend The New York Times' obituary written by Linda Greenhouse, a Pulitzer Prize winner who covered the Supreme Court for the Times for three decades.

And now, the politics of her passing. You're going to hear a couple of phrases a lot in the next couple of months, so let's deal with those first:

• The "Biden Rule": This comes from a speech that then-senator Joe Biden gave on the floor of the Senate on June 25, 1992. Following the bitter Clarence Thomas hearings, and concerned that the process of approving justices had become too politicized, he opined that in an election year, the approval process should be postponed until after the election. Note that he did not say "until the next inauguration." Note also that he was speaking hypothetically, as there was no open spot on the Supreme Court when he made the speech. As chance would have it, the next seat that did come open was the one Ruth Bader Ginsburg was appointed to on August 10, 1993.
  
  
• The "McConnell Rule": The "Biden Rule" did not actually acquire that name until Senate Majority Leader Mitch McConnell (R-KY) decided that he needed cover for blocking Barack Obama's appointment of Merrick Garland to the Supreme Court. At that point, McConnell announced that he could not, in good conscience, consider a Supreme Court nominee in an election year, and that the process would have to wait until the new president and new Congress were sworn in.

Already prominent Democrats, including Biden and Obama have called on McConnell to observe the McConnell Rule, and to hold off until next year on replacing Ginsburg. It was also Ginsburg's dying wish; shortly before her passing, she told her granddaughter: "My most fervent wish is that I will not be replaced until a new president is installed."

McConnell has already responded to these folks. In a statement that spent 102 words honoring Ginsburg and 112 words justifying his plans, the Majority Leader declared: "President Trump's nominee will receive a vote on the floor of the United States Senate." McConnell has previously explained that the McConnell Rule only applies to lame-duck presidents like Barack Obama, and not to presidents who might plausibly be reelected like Donald Trump.

And now, let's talk about Trump. He learned of Ginsburg's demise right after a rally and, to his credit, he said all the right things, declaring that "she led an amazing life." That said, Trump is a walking id who is unable to defer gratification for one day, much less a couple of months. He's also desperately casting about for "wins" to help him in his reelection bid. He will want to nominate Ginsburg's replacement as rapidly as is possible, likely sometime this week (with Amy Coney Barrett the odds-on favorite).

Assuming Trump follows through and that Barrett is appointed, it may help the President, at least a little. The "win" would excite his base and, more importantly, some of the "hold your nose and vote for Biden because you're also voting for the Supreme Court" voters might just skip the election. On the other hand, the "suburban women" that the two parties are fighting over will not be happy about a justice who might vote to overturn Roe v. Wade (which Barrett, a self-described "very orthodox Catholic" would probably do). So, this might blow up in the President's face, even if things go exactly as he wants.

If Trump does move forward with a nomination (the odds of which are surely above 99%), getting Barrett (or anyone else) confirmed before November 3 is going to be a tall order. The problem here is the Senate Republican caucus. Quite a few of them are facing tough reelection campaigns this year, or will be in 2022. They know that their opponents will turn "How come it's one set of rules for Democratic presidents and another set for Republicans?" into a weapon, and that the seeming hypocrisy therein could be very damaging. Already, four Republican senators have said they would not be willing to vote on a new justice before the election: Susan Collins (ME), Lisa Murkowski (AK), Chuck Grassley (IA), and Lindsey Graham (SC). Note that they all said this weeks or months before Ginsburg died, so they were speaking only hypothetically. Now that the rubber has hit the road, and the arm-twisting will be intense, they could change their tunes. On the other hand, it wasn't that hypothetical; Ginsburg's poor health was well known. Further, there may be other members leery of playing with fire—Thom Tillis (R-NC), or Cory Gardner (R-CO), or Dan Sullivan (R-AK). Assuming the Democrats stick together, all it takes is four Republicans to foil McConnell.

One possible solution for the Majority Leader would be to wait until after the election. That would insulate the senators who are up this year, and would observe the Biden Rule. However, if Donald Trump loses, then he would be a lame duck, and McConnell would have to twist himself into pretzels explaining why the McConnell Rule doesn't apply. The Majority Leader has no problem with that; if the game Twister was an Olympic event, he'd win the gold medal. But the vulnerable 2022 senators might not be excited to play along. Further, Trump would go on a months-long rampage if the Senate refused to consider his nominee immediately.

But if McConnell waits until after the election, there is another problem he has to consider. Mark Kelly is leading Sen. Martha McSally (R-AZ) by close to 10 points. He is the likely winner there. One feature of note here is that technically, this is a special election to fill out the rest of John McCain's term. As a consequence, it is possible that if Kelly wins, he could be sworn in as early as Nov. 30, giving McConnell even less room to maneuver if he waits until after the election to have the Senate vote.

There is one other possibility for McConnell we will note. He could bring up the nominee before the election, but give three vulnerable senators (say, Collins, Tillis, and Graham) permission to vote "nay." Though we mention this possibility, we don't think it's a great option politically, because it walks a very fine line, and vulnerable members who don't get to vote "nay" may be upset. Further, a Supreme Court justice who is approved by virtue of a vice-presidential tiebreaker is going to be somewhat wanting in the legitimacy department. And finally, someone like Collins is trying to keep both pro-Trump and moderate voters in the fold. She really doesn't want to cast any vote, since she's more likely to lose support than gain it no matter what side she comes down on.

So, that is the calculus on the Republican side, as we see it. Now let's talk about the Democratic side. Broadly speaking, the Party—from Joe Biden on down—has to figure out very quickly how aggressively they want to go with this. Do they want to play hardball, while also promising radical reforms like court packing? That would please many Democrats, but might scare away moderates and Never Trump Republicans. Or, do they want to just stick with criticism of Trump, McConnell, and the process, without taking or promising any affirmative action of their own? That will keep the moderates on board, but could infuriate a lot of Democratic loyalists, especially on the left.

In terms of specific options the Democrats have before them, we can see four:

• Compromise: This is probably a little Pollyanna-ish, but we're trying to be comprehensive here. A sixth conservative justice is not quite as important as a fifth to McConnell, or to Trump. Meanwhile, McConnell is looking at the possibility of his party losing the White House, and possibly also the Senate. There may be a deal to be made here, along the lines of "We won't kill the tax cut if you honor the McConnell Rule."
  
  
• Parliamentary Tricks: If the Democrats remain unified, and if their spines remain in place, they do have the means to gum up the works of the Senate. Pulling that off for six months or a year would be tough, but four or five weeks? Maybe. For example, the Senate has a spending bill coming up that, by the rules of the chamber, gets priority over other matters. Minority Leader Chuck Schumer (D-NY) could propose a gaggle of amendments, and insist on a bunch of debate, and otherwise make a pest of himself. The House could also play a role here. When the bill to fund the government comes up shortly, suppose House Democrats insert a provision that no judicial appointments may be considered by the Senate within 90 days of a federal election?
  
  
• Court Packing: This is the one that everyone's going to be talking about for weeks and weeks. Assuming the Democrats get at least 50 seats plus the White House in November, and assuming they are willing to kill the Senate filibuster, and assuming they can keep their whole caucus unified behind such maneuvers, it is within the power of Congress to change the composition of the Supreme Court. They could pass a new Judiciary Act adding four more SCOTUS seats and reclaiming the majority on the Court, since a hypothetical President Biden would surely appoint four liberals. Oh, and note that the bill would have to pass both chambers, so this option is not available to McConnell as long as the Democrats control the House.
  
  Of course, court packing is fraught with difficulties. The fact that Franklin D. Roosevelt, one of the most talented politicians the world has seen, couldn't get it done should be cause for significant pause. Further, if successful, it could initiate an "arms race" in which the Republicans would add a bunch of seats the next time they get control of the White House and both chambers of Congress. Court packing would also undermine the integrity of the Court, and could plausibly alienate some significant portion of the voting public.
  
  If the Democrats travel this path, they may want to go with some milder version. It's pretty clear that the Supreme Court approval process is broken, as myriad problems unanticipated by the Founding Parents have presented themselves. The Democrats could try to rally support for "common-sense" reforms, perhaps even adopted via constitutional amendment. Mandatory retirement ages, or SCOTUS term limits (20 years?), or clearer rules for when and how nominees may be considered are all possibilities. It's worth noting that the process of electing senators was completely overhauled, under similar circumstances, in 1913.
  
  
• Lawsuit: Nobody seems to be discussing this option, but this is where we think the real opportunity is for Team Blue. Let's start with a couple of absurd examples. Imagine that McConnell declares that all deliberation on SCOTUS nominees will be done in the men's locker room of the Senate gym. Or maybe he says deliberation will be done in six feet of water, such that only members 6'4" or taller will be able to breathe. These things, if they did happen, would be obvious abuses of his discretionary authority as Senate Majority Leader. Put another way, McConnell has a lot of power, but there are limits to what he can do, over and above what is spelled out in the rules of the Senate.
  
  Meanwhile, keep in mind that in the Senate, precedents are binding. It has always been this way because the very first senators and representatives operated in the tradition of the English parliament and of English common law. This fact is what makes the filibuster-killing "nuclear option" possible; if the 60-vote filibuster is overturned once on a point of order (which requires just 51 votes), then a new precedent is established and it's overturned forever.
  
  Taking these things together, the Democrats could argue that when he applied the McConnell Rule to Merrick Garland, the Majority Leader established a precedent that is just as binding as an actual Senate rule. Senate Parliamentarian Elizabeth MacDonough might (or might not) be asked to weigh in, but she would likely agree. Either way, Senate Democrats could file a lawsuit in federal court arguing that by disregarding the McConnell Rule, McConnell is guilty of an abuse of his discretionary authority. It's plausible that the Democrats might even prevail on the merits. More importantly, however, as we have learned many times in the past four years (see taxes, Donald Trump's; subpoenas, congressional), it generally takes a while for the various levels of the Court system to make their rulings. Toss in the holiday season, when the courts are closed, and it's entirely possible that such a lawsuit could run out the clock on Donald Trump's term if he is not reelected.

Those are the options we see for the Democrats, who aren't quite as handcuffed as you might think. And if they can indeed drag the process out, then we would guess the electoral calculus swings way back in the direction of Joe Biden. The thought of probably replacing RBG undoubtedly motivated a lot of Democratic voters. Now that it's definite, the motivation would be higher, assuming the seat remains open long enough.

Anyhow, it's not quite right to call Ginsburg's passing an October Surprise, since it's not October yet, and her shaky health made it not that much of a surprise. Still, it's yet another curveball in an election season that has already been chock full of them. The maneuvering that goes on in the next month or so will be quite the spectacle for politics-watchers. (Z)

Saturday Q&A

We got quite a number of questions about Ruth Bader Ginsburg, as you might imagine. Many are addressed in the item above. If you have a question that remains unanswered, send it in, and we'll do some RBG questions next week. But you might want to wait a few days before sending them in because in politics, a week is a long time (did we mention that before?).

Q: The Tipping Point Chart currently shows 9 states within the margin of error. In order for Donald Trump to win, he would need to sweep all 9, plus 2 more that are currently outside the MOE. If the 9 are essentially coin flips and the 2 are less likely for Trump than coin flips, is it accurate to say this suggests that Trump's chances of winning are currently less than (1/2)^11 or, in other words, less than .04%? E.B., Tampa, Florida

A: No, and every time we write something vaguely like this, we get a lot of e-mails from people upset about our crimes against mathematics. Your conclusion would be correct if the outcome in each state was an independent event. But they are not really independent events; they are at least somewhat correlated. If, for any reason—a late surge of support, Russian interference, USPS shenanigans, polling errors—Trump ends up winning one of the states in the middle of that group (say, Arizona), his odds increase in the other states.

That said, the prognosticator and political scientist Rachel Bitecofer has remarked that, in 2016, Trump's mathematical odds were poor enough that he had to draw a "royal flush" to win. His math is even worse this year, so he really needs to hope that there are indeed successful shenanigans, or that the polls are off, or that something happens to substantially change the complexion of the race.

---

Q: In your daily Tipping Point chart, what determines the order in which you list states that are tied? For example, today Wisconsin, Michigan, and Arizona all show 7 point leads for Biden. What caused you to list them in the order you did? L.G., Thornton, CO

A: Truth be told, it's effectively random, since there was no "fair" way to choose. We report the averages (and keep them internally) as integers because it violates all scientific tradition to record a number to one decimal place when the uncertainty is ±3 points.

---

Q: I'm curious about how your map looks today compared with how it looked right before the last election. I recall that Hillary Clinton appeared the favorite, I don't recall if the map looked more favorable to her than it does to Biden today. Can you post this or perhaps point me to a link? J.S., St. Louis, MO

A: If you look to the top right, underneath where it says "Strongly Dem, Likely Dem, etc." there are links that allow you to jump back to the same day in 2016, 2012, and 2008. If you jump back to September 18, 2016, you will see that the race was actually quite close. We had Hillary Clinton with 274 EVs, Donald Trump with 258 EVs, and Nevada's 6 EVs as a tie. Obviously, we have Biden with a much larger lead today. Perhaps more importantly, back on this day in 2016, there were only 225 EVs in the "Strongly" or "Likely" Dem columns, meaning that there were more than enough EVs out there for Trump to win the election. Right now, as you can see, we have 280 EVs in the "Strongly" or "Likely" Dem columns.

If you want to look at November 8, 2016 (a.k.a. Election Day), then here it is. Our model was more bullish on Clinton by then, giving her 317 EVs to Trump's 215, with Nevada still tied. However, we also had just 219 EVs in the "Strongly" or "Likely" Dem columns on that day. Further, although we predicted a Clinton victory, we also wrote on that day:

We have 12 states today that are within the margin of error (the ones with a white center in the map). Furthermore, polling this year is worse than it has ever been. To start with, many small colleges and unknown pollsters are in the game for the first time this year and don't have a track record. They may or may not know what they are doing. Second, response rates to pollsters are below 10% and with such unpopular candidates, it is hard for pollsters to find enough people willing to take the survey. Very low response rates may bias the sample in ways as yet unknown. Third, due to low response rates, more and more pollsters are polling over the Internet (e.g., SurveyMonkey, YouGov, Ipsos). Getting a random sample here is all but impossible, so the corrections applied later are absolutely critical. Polling has become like photography: the first 1/125 sec isn't so important. It is the next hour with Photoshop that determines what the photo looks like. All this means that, unfortunately, we may be in for quite a few surprises tonight.

Turns out "quite a few surprises" was an understatement.

---

Q: Could you please list when early in-person voting starts in each state? I feel that if more people knew about this option they would do it (vote early, at their convenience). That being said I'm not sure if every state allows it. I.A., Melbourne, FL

A: Ok, here goes:

Already started	Pennsylvania, Minnesota, South Dakota, Virginia, Wyoming, Michigan, New Jersey, Vermont
September 24	Illinois
October 4	Maine, Montana
October 5	California, Iowa, Nebraska, South Carolina
October 6	Indiana, New Mexico, Ohio
October 7	Arizona
October 12	Georgia
October 13	Kentucky, Texas
October 14	Rhode Island, Tennessee, Kansas
October 15	North Carolina
October 16	Washington
October 17	Massachusetts, Nevada
October 19	Alaska, Arkansas, Idaho, North Dakota
October 20	Louisiana, Utah, Wisconsin
October 21	West Virginia
October 24	Florida, New York
October 26	Maryland
October 27	Washington, D.C.
October 29	Oklahoma

Note that some of these come with caveats of various sorts. For example, Florida actually operates on a county-by-county basis, and the date above is the latest that a county is allowed to commence early voting. The site vote.org maintains a detailed list that lays out specifics for each state.

---

Q: With 6 weeks to go, it's time to make donations where it helps the most. I have a few bucks to chip in to help take back the Senate, where would my smaller donations do the most good at this moment? R.B., Champaign, IL

A: A lot of people have that question, and a group of Democratic activists put together the site Force Multiplier to help with the answer. Swing Left is providing the same service. So, we'd suggest taking a look at those two sites.

---

Q: Today I am going to attend a virtual training hosted by the 2020 victory fund for the Biden campaign, this will be to volunteer on a texting team for voter outreach. As someone who is blind and does not drive a car, and who has concerns about the pandemic, this seems like a reasonable way to try and reach out to those voters who have questions or have fears and doubts about the whole process. While I have been an active donor to campaigns since Barack Obama's 2008 run and while I participated in local events such as the two-step primary caucus here in Texas for Obama in that same year, I've never done something quite like this. If the application tool kit they are using is accessible for me in an iOS environment, I'll be able to easily participate. But this left me with a question: Is there any way that the campaigns for any candidate or party can verify the intentions of someone? I could easily see some Trump troll or mole signing up for this event, acting completely interested, and then using those same tools that I'm going to use to answer questions for voters, to instead intimidate them, give misinformation, and God knows what else. What do you know about how campaigns control for things like this and if a prospective voter were to actually complain or report such activity to me, what would and should I do to assist them? R.D., Austin, TX

A: You know how when you call customer support, you often hear a message "this call may be recorded for quality assurance purposes"? Well, the campaigns generally have means of monitoring workers' efforts, and checking to make sure nothing problematic is going on. Oh, and unlike private businesses, they don't always announce themselves.

Alternatively, and as you point out, they start newbies with loyal party members. It's not until later that they give a tougher assignment. And so, if a volunteer engages in shenanigans, the local party office is going to get a phone call and that volunteer is going to be canned. If you are personally advised of a complaint, just pass it on to your point person at the campaign. They will know what to do.

---

Q: I've read several stories lately about the Trump campaign doing much more in the way of door to door campaigning, while Joe Biden's people have focused more on the campaigning through the Internet. I admit it makes me a bit nervous when I think it might be a bad decision on Biden's part. Of course, maybe I'm a bit too "old school." What's your opinion? J.E., Boone, NC

A: There are very few people left who do not have a strong opinion about Donald Trump one way or the other. And when a candidate like that is on the ballot, we do not think that doing, in effect, door-to-door candidate sales is going to swing very many votes. Or any. The calculus is different when the candidate is lesser-known, but that's not the case here.

Now, there is value in informing people about where their polling place is, or how they can vote by mail, or things like that. However, it seems to us that can be done very effectively over the Internet, and without the risk of aggravating a voter by potentially putting their health at risk.

---

Q: I know you have responded repeatedly to questions about Donald Trump claiming fraud and refusing to leave. However, what if, a couple of days after the election, AG Billy Barr declares there has been massive mail fraud in 3 or 4 swing states (which just happen to be still counting ballots) and sends his DHS thugs to key counties in those states to confiscate uncounted ballots? They come in with AK-47s, body armor, flash grenades, pepper spray and overwhelm the election offices. They take the ballots and Barr declares they are fraudulent—and of course the ballots either do not get counted or they disappear. Is this at all a possible scenario? J.J., Des Moines, IA

A: No, it is not possible. First of all, ballot counting is decentralized, and is generally done on a county by county basis. The number of willing armed hooligans that would be needed to implement this plan, even if targeting just a few blue counties in half a dozen swing states, would be enormous. And the chance of a leak would be substantial, such that the armed thugs might well find themselves met by local law enforcement.

Further, nearly all of the legal authority for running elections rests with states, not with the federal government. Democrats have pushed for more centralized election management, Republicans have pushed back, and now the GOP has to live with that. If Barr were to try to pull something like this, he would be doing so with zero legal foundation to stand upon. At that point we are, once again, talking about a coup. And a coup would require buy-in from an enormous number of people, many of whom (the Pentagon, the House of Representatives, the federal bureaucracy) most certainly will not be willing to play a part.

---

Q: Given Donald Trump's penchant for accusing others of things he himself is guilty of, and the fact that the DOJ is operating as his personal henchmen at the moment, do you think it is possible that felony charges could be filed against Hillary Clinton, Barack Obama, and possibly even Joe Biden or members of his family in October? R.K., Pasadena, CA

A: No. If the DOJ had the goods on any of these folks, they would already have moved forward. We can therefore conclude that there's nothing legitimate (or semi-legitimate) to charge them with.

Charging them with Trumped-up charges would look like the dirty political trick it would be, and would enrage Democrats and many non-Democrats. Meanwhile, the moment the case made it to a judge, the judge would kick it for lacking foundation. And then Barr and his cronies would be civilly sued for malicious prosecution. This would also be an impeachable offense.

---

Q: We know that some administrations, as they leave the White House, have left things in less than good order for the incomers. What might be the response if, at some point after the election is called or perhaps closer to the inauguration, we see smoke rising from within the White House, as a final show of defiance? Would Biden's transition team just sit on their hands? D.P., Oakland, CA

A: First of all, that business of the Clinton staffers trashing the White House and removing all the 'W' keys from keyboards has been grossly overblown. Second, arson is a felony, even if committed by the President of the United States. Joe Biden would have no authority to do anything, but the D.C.F.D. would show up and put out the fire, and the U.S. Marshals would then arrest the perpetrator. Even if the Marshals held off until January 21, they would still eventually pop Trump, and it would be a huge, gift-wrapped package for the Democrats, since arson is eminently provable and is clearly a crime, especially when it involves the People's House.

---

Q: I just realized that Maine has ranked choice voting for federal elections. Any thoughts on how this will affect the Senate race, since it appears at least two independents are on the ballot? J.P., Portsmouth, NH

A: To start, pollsters generally ask respondents about their preference with and without the independents, and Sara Gideon (D) consistently leads Susan Collins in both scenarios. So, it does not appear that the independents will have much of an effect either way. When it comes to election night, we would guess that most people who vote for the independent candidates will have Gideon ranked higher than Collins, such that Gideon will pick up more votes than Collins in round two, round three, etc. We say this for two reasons. First, the much more serious independent, Lisa Savage, is an outspoken progressive. Second because, as a sitting senator, Collins is the status quo. People happy with the status quo do not generally vote for third-party protest candidates.

---

Q: Any thought of mentioning the ambush of the two officers in California, or are you planning on keeping your head in the sand and just ripping on President Trump article after article? Is it really more egregious that Trump supporters aren't wearing masks at his rallies than it is to ambush two police officers in broad daylight and then try to storm the hospital they are at to make sure they don't survive? Or are you okay with that behavior because it didn't involve a white officer shooting a black person? M.F., Oshkosh, WI

A: Perhaps you are a new reader, because you appear to be operating under a false understanding of what this site is. We are not a general news site; if that is what you are looking for, then there are a vast number of options out there for you. What we do is political analysis, with a particular focus on presidential politics with a side dish of the Senate and sometimes the House for dessert. The killing of George Floyd and the shooting of Jacob Blake both became massive political footballs, with both parties' presidential candidates weighing in, and so were right in our wheelhouse. By contrast, that has not happened with the Compton shooting.

As to storming the hospital, (Z)—who is the one writing this—lives about 8 miles from there and that did not happen. What actually happened is that some protesters gathered out front and said some nasty and inappropriate things. Not nice, but not the same as an armed assault. The outlets that have reported it in that way are all right-wing fearmongerers like The Blaze and Breitbart. You want to be very careful of repeating information you get from them, because you could unwittingly cause people to conclude that you're gullible.

---

Q: If Donald Trump loses the election, resigns, and makes a deal with Mike Pence, can Pence pardon Trump if he is not yet indicted for any crimes? If so, can a future AG sue to undo this pardon? A.D., Stoughton, MA

A: Richard Nixon was pardoned, without having been indicted, for any and all crimes he might have committed. So yes, Mike Pence probably could clear the federal ledger for Trump. And while the limits of the pardon power have been barely explored by the courts, it is likely that the pardon could not be overturned.

That said, there are some caveats here. First, if it turned out that Pence was pardoning Trump to conceal his own (Pence's) crimes, the pardon might well be nullified. Further, the pardon power does not apply to future acts, which means it also does not cover ongoing crimes. If, for example, Trump was working as an agent for Vladimir Putin, a pardon would not help him because that would be an ongoing crime. Finally, the pardon power only covers federal crimes, and Trump appears to be in very hot water at the state level in New York. Nothing Pence can do for him there. Pence is also very well aware of what happened to Jerry Ford as a result of pardoning Nixon. If Pence were to go along with that scheme, that would end his political career, so what could Trump offer him to make him do it? Money? Smells like a bribe to us, with all the legal consquences thereof.

---

Q: You wrote that "federal law prohibits super PACs from coordinating with campaigns." What is the punishment for this? L.M.S., Harbin, China

A: In theory, a criminal prosecution is possible, although a civil penalty (a fine) is more likely. In truth, the threat is something of a paper tiger. To start, it's very hard to prove coordination. On top of that, it's the job of the Federal Elections Commission (FEC) to investigate and punish, and right now the FEC has only three members, with six needed to conduct business. Finally, even when the FEC is fully staffed and fully functional, it rarely bothers with these sorts of prosecutions. In the last 20 years, it's conducted only three of them, two of which resulted in findings of guilt, with total penalties of just $26,000.

---

Q: You mentioned that Attorney General William Barr is a proponent of the so-called "unitary executive" theory of the presidency. Can you elaborate on what exactly that theory entails? Is it just people on the right-wing or are there left-wing proponents as well? What are some of the other theories of the presidency? E.W., Skaneateles, NY

A: The "unitary executive" theory, in a nutshell, is the notion that the President should have absolute control of the executive branch, with all executive employees subservient to him, and the other two branches keeping their nose out of the executive branch's business. There are "weak" and "strong" flavors of the theory, but you can see that the general idea is consistent with Dick Nixon's observation that "if the president does it, it's not illegal." It is almost exclusively a right-wing theory, although only popular among a small subset of right wingers.

The primary alternative is, of course, checks and balances, where each branch has a responsibility to, and is subject to being checked by, the other branches of government.

---

Q: You've written frequently (including Thursday) that "Now pretty much the only bills that can pass the Senate are those naming Post Offices..." Is this really true? How often does the Senate name or rename Post Offices and why is this a Congressional responsibility instead of a USPS job? T.H., La Quinta, CA

A: The post office is allowed to name buildings, too, but they generally just name them for their location (e.g., USPS Exposition Park). The reason that members of Congress do it is because naming a building after a war hero, or activist, or notable historical figure is a quick and easy way to score some political points.

And it actually is a surprisingly large chunk of Congress' business, in terms of bills passed. For the 110th Congress (2007-09), which set a record, 109 of 460 bills adopted (23.7%) renamed post offices. For the Congress right before that, it was 98/482 (20.3%), and for the one right after it was 70/383 (18.2%). These days, changes to House and Senate rules make these bills a little less common. However, Congress also passes fewer bills overall. The current Congress has passed just 158 laws, of which 19 (12.1%) renamed post offices.

---

Q: Why don't pollsters publish their phone numbers? I'm not taking about the numbers they dial, but the numbers that show up on Caller ID. I'd be more than happy to answer a presidential poll but I also never answer my phone for a number that I don't recognize. Since the cell companies have gotten much better about flagging spoofing, it seems like poll agencies would want to advertise what Caller ID numbers are theirs so people would recognize them and pick up (by adding to their address books so the name appears). K.W., Austin, TX

A: First of all, it's not so easy to implant your phone number into the minds of 330 million Americans unless it's something like 800-666-6666. Second, they would surely get a vast number of incoming calls from mischief-makers. Third, if political operatives know which numbers to look out for, that would raise the possibility of manipulation, since they would drill those numbers into the brains of every member of the campaign.

Without saying too much, one of us is currently a respondent for a data collection service that is not political, but is potentially subject to manipulation. When the arrangement commenced, the data collection service was very clear that there should be no public pronouncements involving their name (for example, no Facebook posts), for fear that interested parties might find out and try to take advantage.

---

Q: I know we seldom answer calls on our landline (or even our cell phones) that we do not recognize. Does this have any influence on the validity of polls? C.G., Greeneville, TN

A: Generally, no. It just increases the cost of the polls because they have to spend more time calling people to get enough respondents.

The exception would be if the high cost of calling people causes a pollster to shift to an online model, or a hybrid phone-online model. In that case, it might screw up the polls a bit, particularly if they don't have previous experience with online work.

---

Q: I remember having to read Richard Hofstadter's The American Political Tradition: And the Men Who Made It in high school, including his chapter on Herbert Hoover. How do you reconcile Hoover's role in saving millions from starvation during and after WWI with your perception of his failed presidency? The usual response I get to this, from people who are not ignorant of history, is that they had no knowledge that Hoover's name once meant "food for the starving and medicine for the sick." What went wrong?

I bring this up because you seem to equate Hoover with Donald Trump in terms of empathy and competence. Nobody in American History deserves that kind of comparison. G.H., Hanson, IL

A: To start, when we answered that question, we were speaking of President Hoover, and so considering only his time as chief executive as compared to the presidencies of the other 43 occupants of that office.

As to the seeming incongruity in Hoover's life, there really is no incongruity at all. He grew up at a time when many Americans believed charity should be voluntary and privately funded, and was not the purview of the government. And so, when Hoover had the opportunity to do good works that were voluntary and were private (or only nominally connected to the government) he performed magnificently. When he was in the big chair, however, he largely sat on his hands because that was consistent with his theory of government. Obviously, FDR had a very different theory.

---

Q: How do the current Trump administration shenanigans compare to those of the Harding administration? C.D., New York, New York

A: Well, you can certainly find some very significant similarities. Both presidents, on taking office, surrounded themselves with a large number of cronies (in Harding's case, they even had a name, the "Ohio Clique" or "Ohio Gang"). Both had Secretaries of the Interior who attempted to line their pockets by granting sweetheart land deals to private business concerns (not only that, but the parcel in question with Albert Fall, and the parcel in question for Ryan Zinke, were only about 80 miles apart). Both had Attorneys General who acted more like fixers, involving themselves in all sorts of government business that was not, in fact, their business.

That said, the paragraph above covers about 90% of the things that made the Harding administration scandalous, whereas it just scratches the surface for Donald Trump. Further, Harding himself—though not too sharp, and subject to being manipulated—was basically honest and was certainly not on the take. Trump, not so much.

Today's Presidential Polls

Arizona really appears to be turning blue. Whether this is a one-time reaction to Arizona's distaste for Donald Trump and/or a love of Mark Kelly, we don't know, of course. If it becomes a blue state along with North Carolina, it's hard to see where the Republican Party goes from there.

As to the "Midwest" battlegrounds, Michigan looks like a lost cause for Trump. Pennsylvania and Wisconsin aren't lost causes, but they sure don't look good for the red team. The only good polling news today is that maybe Trump can salvage Ohio, but even that is far from sure. (V)

State	Biden	Trump	Start	End	Pollster
Arizona	47%	42%	Sep 12	Sep 16	Redfield and Wilton Strategies
Arizona	49%	40%	Sep 10	Sep 15	Siena Coll.
Florida	47%	44%	Sep 12	Sep 14	Redfield and Wilton Strategies
Maine	55%	38%	Sep 11	Sep 16	Siena Coll.
Michigan	48%	40%	Sep 10	Sep 15	EPIC-MRA
Michigan	49%	39%	Sep 12	Sep 14	Redfield and Wilton Strategies
Michigan	53%	42%	Sep 11	Sep 15	Civiqs
North Carolina	45%	44%	Sep 11	Sep 16	Siena Coll.
North Carolina	47%	45%	Sep 12	Sep 15	Redfield and Wilton Strategies
Ohio	45%	48%	Sep 11	Sep 15	Civiqs
Pennsylvania	49%	44%	Sep 12	Sep 14	Redfield and Wilton Strategies
Pennsylvania	52%	45%	Sep 11	Sep 15	Civiqs
Wisconsin	47%	41%	Sep 12	Sep 16	Redfield and Wilton Strategies
Wisconsin	51%	44%	Sep 11	Sep 15	Civiqs

Today's Senate Polls

Imagine you were Martha McSally and at least 10 points in the hole and you now have to vote on a wildly controversial Supreme Court nomination. What do you do? How about calling in sick? No matter how she votes, she is probably doomed.

Sen. Susan Collins (R-ME) will no doubt express her concern about rushing a confirmation, but when push comes to shove, count on her doing what is best for Susan Collins, not what is best for Donald Trump, and certainly not what is best for America. Only it is not clear what is best for her. No matter how she votes, it will anger many Maine voters.

Finally, Cal Cunningham is in a good position because he doesn't have to vote on the new nominee. He can just say it should be up to the new president and new Senate. Sen. Thom Tillis (R-NC) doesn't have that luxury. He's behind and the state is trending blue, so a vote to confirm may seal his doom. But a vote to reject the nominee may also seal his doom. Like the other Republican senators up this year, his best personal hope is to have the Senate not take up the nomination this year. Maybe he will just drop Mitch McConnell a line and let him know.

Just in case you were planning to run for the Senate in 2022, while the prospect of making $174,000 for an indoor job with no heavy lifting may sound great, sometimes it comes with a bit of pressure. As the Boy Scouts say: "Be prepared." (V)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Arizona	Mark Kelly	50%	Martha McSally*	42%	Sep 10	Sep 15	Siena Coll.
Arizona	Mark Kelly	52%	Martha McSally*	35%	Sep 12	Sep 16	Redfield and Wilton Strategies
Maine	Sara Gideon	49%	Susan Collins*	44%	Sep 11	Sep 16	Siena Coll.
Michigan	Gary Peters*	45%	John James	41%	Sep 10	Sep 15	EPIC-MRA
Michigan	Gary Peters*	51%	John James	35%	Sep 12	Sep 14	Redfield and Wilton Strategies
North Carolina	Cal Cunningham	42%	Thom Tillis*	37%	Sep 11	Sep 16	Siena Coll.
North Carolina	Cal Cunningham	49%	Thom Tillis*	38%	Sep 12	Sep 15	Redfield and Wilton Strategies

* 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