Saturday Q&A

We got hundreds of Supreme Court/RBG questions, which is obviously what we will start with this week. Hopefully we picked good ones to answer.

Q: I would think Donald Trump would be glad to accept the McConnell Rule, giving him an excuse to delay judge selection until next term. Given that he does not really care about the Court, only about winning the election, he could tell his voters that they need to vote for him to get a conservative judge installed next term. But once the judge is already appointed (or at least named) before the election, then that is taken care of for conservatives without having to elect Trump. What am I missing? J.A., Rutland, VT

A: This question, in various forms, was the one we got most frequently this week.

A savvy politician, in the year 2016, might assess things in this exact manner. In fact, a savvy politician did. Barack Obama very clearly did not force the Merrick Garland issue in any serious way, at least in part, because he thought it would help Hillary Clinton to have an open Supreme Court seat to run on.

A savvy politician, in the year 2020, might reach the same conclusion. Or, they might look at what happened in 2016, decide a bird in the hand is worth two in the bush, and seize the opportunity while it was before them.

Donald Trump is not a savvy politician, at least not in this way. He has no patience and little discipline, and is interested in what he can do NOW to benefit himself NOW. He wants things to brag about, and things that Sean Hannity and Tucker Carlson can praise him for. He also sees a stacked Supreme Court as an insurance policy in case he and his underlings are able to throw a big enough wrench into the election and re-create 2000. For these reasons, we are certain he did not spend so much as a nanosecond thinking about the possibility of holding off.

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Q: (Z) wrote: "If the Democrats win all the marbles and in January start doing things the Republicans really don't like, such as packing the Court, killing the filibuster, enacting a tough new voting rights act, or even passing a law restricting what the Supreme Court can do, the Republicans will scream. Then Schumer and Pelosi will say: 'Your appointment to the Court was legal and we didn't scream. Our new actions are legal, so please sit down and be quiet like we were.'" After the Republicans ram through their Ginsburg replacement next month, what's to stop the Supreme Court from determining that any of these measures are unconstitutional by a 6-3 vote (or 5-4 if Roberts speaks to his angel side, which still makes no difference)? What "legal" justification would they use? How about "cause we said so"? J.R., Lytham, UK

A: We also got many variations of this question this week, positing various nefarious things that the Supreme Court might do by fiat with a 6-3 conservative majority.

We're going to start our answer with the most famous, and most infamous, example of a Supreme Court deciding to legislate from the bench. That would be the Dred Scott decision of 1857. In that case, of course, Dred Scott sued to be freed from slavery on the basis that he had resided (with his owner) for an extended period in places where slavery was outlawed. Chief Justice Roger Taney and his court could easily have brushed the suit aside with a finding that Black people had no right to sue under the Constitution. That would have been legally sound under the Constitution as it existed in 1857, and would have raised very few eyebrows.

Taney and his court did find that. However, the slave-owning Chief Justice decided that he and his colleagues needed to take it much further. And so, channeling their inner John Marshall, the Taney Court declared that all Congressional laws limiting the spread of slavery (e.g., the Missouri Compromise, the Kansas-Nebraska Act, etc.) were null and void. The Chief Justice felt he had permanently resolved the slavery question in favor of the South and of Southern slaveholders. And while Southerners nodded knowingly in response to the decision, Northerners were outraged. Not only did they ignore Taney's ruling, but many who had previously been neutral on the slavery issue were driven right into the arms of the anti-expansion-of-slavery Republican Party. And the first Republican to be elected president, a fellow named Abraham Lincoln, felt entirely comfortable ignoring the Court whenever it suited his needs to do so (as he did, most famously, in Ex parte Merryman). The reputation and influence of the Supreme Court suffered for at least a decade, even after Taney died in 1864.

The point here is that the Supreme Court can certainly attempt to act like a group of oligarchs, and to issue rulings that are nakedly partisan and have no basis in the law. After all Taney and his colleagues did it. But that doesn't mean those decisions will be honored, particularly by folks who can smell the obvious rat.

As to your specific question, the filibuster is a procedural issue of the U.S. Senate over which the Court has no say, and the other issues we listed involve the Congress very clearly exercising their Constitutionally delegated powers. If the Court tries to rule otherwise, then they will be pulling a Taney, and may well reap the whirlwind.

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Q: It's been posited by some that the Democrats should pack the court if they win the presidency and a Senate majority. As I gave this more thought, however, I realized this is not a possibility. Why? Because it requires a change in law, and that law would be immediately tested in court. What's the highest court? The Supreme Court. With a 6-3 majority, the (nakedly partisan) conservatives would never allow an amendment to the Judiciary Act to stand. Is there any reason to think otherwise? J.L., Wanamingo, MN

Q: What if a Democratic Congress passed and President Biden signed a law stripping the Supreme Court of the authority to review laws dealing with health care? The Republicans would sue to block any such law. Seemingly they wouldn't have a leg to stand on, but we've thought that before. If the Supreme Court struck the law down, would we be in a constitutional crisis? L.H., Acton, MA

A: These are two specific examples of what we were talking about above. Article III of the Constitution explicitly gives the Congress broad discretion to determine the structure of the Supreme Court, discretion they have exercised many times previously. That same article gives Congress the right to impose limits on the jurisdiction of the Court. Unless the Congress was to clearly violate some other part of the Constitution in doing these things, then the law would be entirely on their side. And if SCOTUS tried to pretend otherwise, then they would be ruling by fiat, and it would be no different from ruling that Black people can no longer vote, or income taxes are not legal any more, or presidential terms are now 12 years.

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Q: Let's say, after all the votes are counted and state-certified, Joe Biden has a clear majority of electoral votes. Let's also assume that, by then, Trump has filed suit contesting the counting of the votes and it goes to the Supreme Court. Chief Justice John Roberts sides with the liberals, but is in the minority of a 5-4 ruling that Trump has won the election, because reasons. On Inauguration Day, it is the Chief Justice who swears in the president. Is there anything to stop Roberts (assuming he wanted to) from simply swearing in Biden on the steps of the Supreme Court, thereby making him president? J.L., Wanamingo, MN

A: Here you have uncovered an even more substantive limit on Supreme Court powers than the one raised by your question above. The president does have to take the oath of office, but there is nothing that says the chief justice has to be the one to administer it. Calvin Coolidge was sworn in by his father after learning of President Harding's death. Lyndon Johnson was sworn in by federal judge Sarah Hughes after John Kennedy's assassination. Meanwhile, if Chief Justices could make a president solely by whipping out a Bible (or not) and administering the oath, we 100% guarantee you that the aforementioned Roger Taney would have inaugurated President John Breckinridge on Mar. 4, 1861.

The legally elected president is the one whose selection is either confirmed, or voted upon, by Congress. That's it, end of story. John Roberts has nothing to say about it, regardless of whom he swears in (or even if he swears nobody in at all, and someone else does the job).

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Q: I have read that some Democrats in Congress have proposed initiating impeachment proceedings against AG William Barr as a way of delaying the vote on the nominee to replace Ruth Bader Ginsburg on the Supreme Court. The tactic, as I understand it, rests on the notion that the Senate must consider any Articles of Impeachment before considering any other business. I would be interested in your take on this impeachment strategy. M.H., Athens, GA

A: Our take is that it is extremely unwise. Politically, it would look very bad for the Democrats, and would give credence to claims that the Ukraine impeachment was a political stunt. Logistically, it just won't work. Both the "impeachment takes precedence" rule and the actual procedures for impeaching someone are set by the members of the U.S. Senate. All it would take is 51 votes to overturn the rule that privileges impeachment, or to adopt impeachment procedures that allow for 10 seconds of testimony in total, followed by a vote, thus dispensing of the impeachment case in half an hour.

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Q: You wrote on Saturday about the possibility of the Democrats suing due to Senate Majority Leader Mitch McConnell's (R-KY) inconsistent applications of Senate procedure. I haven't seen anything else on your site about that, nor have I read anything anywhere else talking about it. Is it possible or was that a mistake? T.S., St. Louis, MO

A: When we wrote that, we noted that nobody seems to be talking about it. And that remains the case a week later. Keep in mind that anyone can sue for anything and, in this case, the suit need only have enough merit to avoid getting kicked immediately, and ideally to justify the granting of an injunction. Those bringing the suit also need to have standing, but surely Democratic senators have standing to file a suit about U.S. Senate procedures.

Anyhow, we think it's plausible these hurdles can be overcome, at least enough to drag things out until January. After all, Donald Trump has far less of a legal leg to stand on when it comes to hiding his taxes, and yet he's managed to keep that going for nearly four years.

We'll add one last thing. We are not lawyers, but we have a lot of readers who are. If we make an error when it comes to law or legal procedure, we tend to hear from them. None of them wrote in to say that the idea was nuts, so we take that as at least semi-confirmation that the option has enough potential to be worth a try.

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Q: Had Hillary Clinton won the election in 2016, I have no doubt Ruth Bader Ginsburg would have retired after Inauguration Day. Even though the Senate at the time was 51-49 for the GOP, do you think Mitch McConnell would have bowed to reality and allowed whomever Clinton appointed to the Supreme Court to receive a hearing and a vote? Or would he have done the same thing as he did to Merrick Garland? R.H.D., Webster, NY

A: There were certainly some members who were talking like that (say, John Cornyn, R-TX). That said, we can surely all agree that the McConnell Rule was sophistry, without any actual basis in law or historical precedent. And the only purpose for crafting that sophistry was to give Republican members of the Senate political cover for their actions. If it was necessary to give cover for nine months' worth of delay, does that not imply that four years' worth of delay would be a considerably harder sell to the voting public, making members up in the midterms particularly leery? For that reason, our guess is that McConnell would not have been able to keep the seat empty for an entire term. But that is just our best guess, and you can never be sure with him.

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Q: With an extra conservative judge on the Supreme Court, there is the possibility that the ACA might be under attack again. If the Democrats keep the House and take the Presidency and Senate, with the potential of eliminating the filibuster, might they just get around things by passing a brand new health law? A.M., Bradford, UK

A: They could, but they don't actually need to. The basis of the current ACA-killing case is that the tax called for by the law was zeroed out, which, according to Republicans, renders the whole law invalid. So, if Democrats just reset the tax to a penny, or a dollar, or whatever it was in the first place, that would kill the lawsuits right there.

Note also that it wouldn't require ending the filibuster, either. The Republicans zeroed the tax using budget reconciliation, which requires only 51 votes and is un-filibusterable. Democrats could reverse it the same way.

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Q: If Democrats are looking to "pack the courts," shouldn't they consider rebranding? Packing the courts sounds pretty nefarious to the average voter. Expanding the court might be a more marketable phrase. Also, would it be in the best interest of Democrats to expand the court to 11 seats, claiming that Trump unfairly added two judges to the court? I can see that working better than expanding the court to 13 or 15 justices. A.M., Orlando, FL

A: Let's start with the latter part of your question. If the Democrats add two justices, then Republicans will be outraged at the action, and Democrats will be outraged that the Party went part way but didn't even regain control of the Court. That's a lose-lose.

As to rebranding, that would be a very wise idea. There are currently 13 judicial circuits. It would be easy to argue that there should be one justice per circuit, necessitating the addition of four more. The Democrats could also argue that the Ninth Circuit has gotten too large (it covers 20% of the populace) and should be split into two. In that case, the Chief Justice could be exempted from circuit duty. With 14 associates, one per circuit, that brings us to 15. Either way, even if it's not 100% truthful, the Democrats could brand this as necessary reform of a system that hasn't grown and changed with the times, as opposed to a raw power grab.

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Q: Why are judges given lifetime appointments? How did this come about? Can it be changed? C.L., Stephen, MN

A: The gentlemen who wrote the Constitution felt it would be the best way to insulate the judges from political pressure and limit susceptibility to bribery (since they did not need to worry about "setting up" their next job). That said, the average lifespan back then was shorter, and often people weren't actually all that functional in their twilight years due to various physical maladies. So, the Framers did not foresee Supreme Court justices who might serve for 30-50 years.

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Q: I'm constantly reading about the Democrats packing the court after a Biden win in November. Can they "unpack" the court instead, and reduce the number of justices from 9 to 7? Who would be eliminated? Would it be the justices with the least service time? M.D., Des Moines, IA

A: Although the Congress has a fair bit of power to dictate the structure of the Court, forcibly sending justices into retirement is, in the absence of a constitutional amendment, probably beyond their reach. The Constitution says that "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." This strongly implies that a judge's tenure can only end in three ways: (1) death, (2) resignation, or (3) impeachment and conviction.

The Congress can shrink the size of the Court going forward, if they wish, something that they last did in 1866. In that case, they specified that once seats came open, they would not be filled until the new, smaller number (7, down from 10) was reached. As this suggests, the vacancies were based on whatever justice happened to retire first, and not on age or seniority or lack of seniority.

Oh, and the shrinkage was never actually completed. Only two justices actually retired before Congress reset the number of justices back to nine in 1869.

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Q: I've come to notice that you don't really like Marbury v. Madison, nor judicial activism for that matter. But weren't those things precisely what allowed the (beginning of the) end of segregation through landmark decisions like Brown v. Board of Education, Loving v. Virginia, or Roe v. Wade, just to name three cases that today are considered cornerstones in the building of a more democratic and egalitarian society? S.C., Caracas, Venezuela

A: Be careful about inferring what we like or don't like from what we write. Sometimes we are critical of specific implementations of a particular principle, sometimes we are just passing on the ideas of others. If there's anything we dislike in general, it is judges who cloak obviously partisan goals in dishonest rhetoric that makes it seem as if they are just calling balls and strikes. Antonin Scalia was one of the worst in this regard. We also don't especially care for the phrase "judicial activism," as we find that is generally a platitude that just means "I disagree with that ruling."

As to judicial review, wherein the Court steps in and overrides an act of Congress, none of the cases you cite are examples of that. All three of them involved the Court deciding that state laws (in Kansas, Virginia, and Texas, respectively) were incompatible with the Constitution. This is precisely the function that the authors of the Constitution had in mind for the Supreme Court.

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Q: While it seems possible the Supreme Court could overturn Roe v. Wade, this would not be a federal ban on abortions, right? Citizens in states like California (where I live) would not have to worry about their right to have an abortion, right? Is that right, or should I worry about the (much more apocalyptic) scenario of abortions being outlawed across the U.S.? G.Z., San Francisco, CA

A: You are correct. Overturning Roe would merely allow states to impose partial or complete limits on abortion, should they want to do so. Since blue states (and probably purple states) would not exercise that prerogative, and since wealthy and middle class people in red states generally have the wherewithal to travel to a blue state when needed, the primary effect of this would be to compel poor women in red states to carry pregnancies that they do not want to term.

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Q: The court has basically been 5-4 in favor of conservatives for my entire lifetime. I'm 53. Has there been a time in history when the court has been as unbalanced (6-3) as it would be if Trump and his enablers succeed in seating a replacement? How did that work out?

Also, is Ruth Bader Ginsberg's death a mere 46 days prior to an election the closest to an election that a justice has died? R.L., Alameda, CA

A: It is a little difficult to extend this question too far back, since geography was almost as important a consideration as party before 1920 or so (in other words, every region of the country demanded representation and was angry if they didn't get it).

In the last century or so, the most obvious imbalance came during and after 16 years of Democratic rule. From the day that Owen Roberts retired in 1945 until the day Earl Warren was seated as Chief Justice in 1953, every member of the Court was a Democratic appointee. Since Warren proved to be a closet liberal, it meant that the Court actually went a decade without a conservative Republican on it (John Marshall Harlan II, seated in 1955, ended the streak). Since Franklin D. Roosevelt tried to make sure different factions within the Democratic Party were represented with his eight picks, and also solicited some Republican input, the all-Democratic courts were functional and were generally well regarded by most Americans.

As to your other question, RBG is in second place on the "death closest to election" list. In first place is Roger Taney, who is all over the Q&A today, and who died 27 days before the election of 1864 (by chance, on the same day his home state of Maryland outlawed slavery).

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Q: Ruth Bader Ginsberg argued six cases before the Supreme Court, winning five. What was the sixth case? F.W., Santa Barbara, CA

A: Her cases before the Supreme Court were almost always about gender disparities in government policy, like in Califano v. Goldfarb, where she successfully argued that paying Social Security survivors' benefits to widows but not widowers was inherently discriminatory towards men while also devaluing the work of women. The one case she lost was Kahn v. Shevin, which centered on a Florida law that allowed a $500 property tax exemption for widows but not widowers. The Court found that because men make more money than women, and the purpose of the tax break was to lessen the blow of the death of an income-earning partner, this law had a reasonable public policy justification.

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Q: Has there ever been an assassination attempt on a Supreme Court Justice? H.H., Boston, MA

A: That depends on your definition of the word "assassination." Generally, it is used to mean "politically motivated killing." And if that is the definition we use, then the answer is "no." On the other hand, if you merely use the word to mean "murder attempt," well, Stephen Johnson Field had a decades-long dispute with a fellow judge in California named David S. Terry. While Field was sitting on the Supreme Court, and was riding circuit in California, a heavily armed Terry accosted him with intent to kill. However, Terry was shot dead by Field's bodyguard, U.S. Marshal David B. Neagle.

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Q: At what point do Donald Trump's malevolent plans of a dictatorship cross the line from "politics" into a coup d'état? Even if done as visibly and out in the open as Trump has been doing, isn't the act of planning a coup to take control of the country a crime? Who's left to investigate and stop such a plan if the Attorney General is a part of it?

What I find completely terrifying is how quickly such a question has gone from spy novel nonsense to one of plausibility and deserving of at least some consideration. S.S., West Hollywood, CA

A: Vigilance is clearly called for, because Trump is willing to trample just about any norm, democratic or otherwise, in service of his goals. That said, our study of history suggests that coups work only in two situations. The first is when the people being governed welcome the change and promptly accept the legitimacy of the new leader. That clearly does not apply here. The second is when the people being governed are too frightened to challenge the new leader. And that sort of coup (including the fear involved) requires military backing. Trump quite clearly does not have that; the leaders of the U.S. armed forces reiterated yet again this week that they will not be getting involved in the election.

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Q: Can Trump issue executive orders that would suppress voting or vote counting? R.L., West Monroe, LA

A: He might try, but he has no legal basis for doing so. The sole purpose of executive orders is to instruct employees of the executive branch as to how the president wants federal law and/or his policies implemented. Since elections are run by the states, and not the executive branch, executive orders are irrelevant.

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Q: A lot of time is spent on what is wrong with Donald Trump. And while I'm vexed that a sociopathic entitled egomaniac is president, it's only been a few years. I'm more confused and confounded by the enabling of all the Republican Senators. I am pretty far-left progressive by this country's standards, so I've never seen eye-to-eye with these folks, but I didn't think they wanted to dismantle our country.

I just don't understand why people who have been in the Senate for decades, who are old enough and well off enough to retire, won't act to protect our Constitution and country? Often it is said to be because they want to get re-elected but that can't explain why they are willing to go this far. What's in it for them? R.J.C., Salem, OR

A: Most of it is that while Trump is a loose cannon, most of the things he actually accomplishes (which isn't a lot) are standard Republican things (tax cuts, conservative judges, poking Iran in the eye). Clearly, a lot of them made a Faustian bargain that they would tolerate the loose cannon stuff in exchange for the advancement of their policy priorities.

That said, we certainly have trouble understanding their near-total (or total) lack of a line in the sand. Eventually, the Republicans of Richard Nixon's era reached their limit. And Nixon did far less than Trump has done. We also cannot understand folks like Jeff Flake, who is clearly anti-Trump, and who was not running for reelection, and who still fell in line behind the President whenever it was time to cast a vote. The same holds, to a large extent, with Sen. Mitt Romney (R-UT), who surely isn't planning a multi-decade career in the Senate.

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Q: If the Democrats were to succeed in retaking control of the U.S. Senate, is it a lock that Minority Leader Chuck Schumer (D-NY) would become Majority Leader? P.S., Highland Park, IL

A: It's not a lock, but it's very likely. A potential challenger would have to announce themselves, and would have to round up roughly 26 colleagues willing to support them for majority leader. That challenger, and any of their supporters, would be taking quite a risk, since if the challenge did not work out, they would suddenly find themselves struggling to get anything brought to the floor of the Senate, and would end up being assigned to the Select Committee for Bubblegum Chewing, Tiddlywink Playing, and Finger Twiddling.

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Q: Can the House majority choose a foreign-born representative, like Rep. Pramila Jayapal (D-WA) for Speaker of the House? If so, what would happen to the Presidential Line of Succession in the situation where the President and the Vice President are both removed and/or pass away? T.S.I., Seattle, WA

A: The House can choose anyone it wants, since the Constitution places no limits on the position. Queen Elizabeth II? Sure. Prince George? Yep. Vladimir Putin? Ok. Richard Ramirez, a.k.a. "The Night Stalker"? Legal, if dangerous. There is no requirement that the Speaker be a member or a citizen, since the authors of the Constitution expected the Speaker to be a staffer/functionary like the sergeant-at-arms or the parliamentarian. To this day, the speaker of the British House of Commons doesn't take sides in debates and would never dream of using his position to further his party's goals. It wasn't until Henry Clay came along that the job became powerful.

As to your latter question, anyone in the line of succession who is not eligible to the presidency is skipped. This was a subject of discussion, most notably, when the foreign-born Madeline Albright and the foreign-born Henry Kissinger served as Secretary of State. Currently, the only person in the line of succession who is subject to being skipped for this reason is Secretary of Transportation Elaine Chao.

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Q: A colleague says that Amy McGrath is a pro-Trump Democrat. Any truth to his assertion? M.R., Oakland, CA

A: Amy McGrath is a Democrat running for statewide office in a state that is very pro-Trump. That means she has to craft her messaging carefully so as to avoid stepping on too many Kentuckian toes. If she were to walk around and talk like a Sen. Bernie Sanders (I-VT) or a Rep. Alexandria Ocasio-Cortez (D-NY) clone, she would be wasting her time. She may be wasting her time anyhow, but she would definitely be doing so if she ran a deep-blue-state campaign in a deep-red state.

That said, her stances on the issues, which are clearly outlined on her website, are those of a centrist Democrat and not those of Donald Trump. She's in favor of commonsense gun control, strong action to combat COVID-19, the ACA, renewed engagement with the nations of the world, taking steps to reverse climate change, and a compassionate immigration policy. Does any of this sound pro-Trump?

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Q: I'm a voter in western Pennsylvania. I heard about the "discarded ballots" being found in Luzerne County and Barr's inappropriate remarks. I wasn't aware that ballots were already being mailed out in Pennsylvania, let alone returned. Is it possible that these are leftover and/or late ballots from the 2016 election? D.K., Zelienople, PA

A: Probably not. Pennsylvania sends out military and foreign ballots (see below) earlier than the others, due to delivery time issues. In fact, Pennsylvania military ballots are sent out so early they have blank lines so that the recipients can fill the candidates' names in once they are known.

Because the DoJ is being coy, and because they are trying to create a talking point for Donald Trump, there is still much that is unknown about these ballots. However, they may have been discarded by accident by a temporary employee. And they may have been discarded because they were "naked" (i.e., no interior envelope) and so were invalid as a result of the lawsuit that the Republican Party just won. Details are still coming out.

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Q: I am a U.S. citizen living in France. My home state is Pennsylvania where I vote by absentee ballot. Three days ago, I sent in my ballot by registered mail. Just before putting my marked ballot into a neutral envelope I re-read the instructions, which explained that I should completely blacken the rectangle next to the candidate of my choice. I had marked the rectangle with a simple X. Would my vote be counted if I had left only the X? K.J., Challex, France

A: Probably. The "fill in the whole square" thing is just to make sure the machine can read your response. But nearly all tabulation machines can read a partial response unless it's really light. Even if the machine can't read the ballot, and a human has to process it, most states have some sort of legal expectation that voters' ballots will be counted if their intentions are clear.

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Q: Concerning Michael Bloomberg raising $16 million to allow Florida ex-felons to register to vote, you wrote that "it seems fair to guess that will add a net of 10-14,000 votes to the Democratic column."

Previously, you said that this was not possible, since the state was not willing to reveal how much money each ex-felon owed. What has changed? S.Z., New Haven, CT

A: There's no statewide system for getting this information, but some counties (e.g., Miami-Dade) are able to provide the information.

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Q: Like you, I've subscribed to Donald Trump's mailing list since the beginning and find it an utterly fascinating experiment by Brad Parscale. Never before has a President let anyone test their entire list 10x a day. Whether it's effective for Trump will be determined, but I think we can all admit a bit of proprietary data envy when it comes to Mr. Parscale.

My question has to do with the number of "XXX%-match" emails that Team Trump has been sending out, especially the last couple months. A couple years ago, the matches were 200-400%. Now they're regularly at 800% for super special, long-time supporters like me and the 2 other e-mail addresses I've signed up for experiment's sake (none of which have contributed anything or offered anything that could be construed as support). How do such matches work, and how are they legal? Who is contributing the money? M.S., Megève, France

A: It is very difficult to answer this question using campaign filings, and the folks who use this stratagem consistently refuse to discuss it with reporters.

As you appear to suspect, it's likely that it's a scam. Or, if not a scam, a misrepresentation. The wording implies that, but for your $10 donation, the campaign won't receive the other $20 or $40 or $80 that you are "activating." But they don't actually say that. And if you donate $10 (not that you will), it surely will be "matched" many, many times by other donors. It's just that their donations are not, in any way, motivated by yours.

Most of the ways that this arrangement might be accomplished, if the matching worked in the manner that the e-mails imply, would not be legal. Campaign limits apply to any donations, whether they are "matching" or not. So, a super PAC, or a rich supporter, or a corporation could not provide the matching funds (beyond $2,800). The only plausible way it might be done is if the candidate were providing matching funds out of his or her own pocket, since candidates are permitted to make unlimited donations to their own campaigns. However, the two most aggressive practitioners of this trick (Donald Trump and Mitch McConnell) have not reported any personal donations to their campaigns so far.

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Q: I followed this webpage quite closely in 2016, and was quite sure Trump would lose. I was flabbergasted that night. What has changed, in terms of algorithms, polls, etc. that can give us more confidence that 2020 will not be a repeat of 2016 in terms of this forum's predictions? T.K., New York, New York

A: We can think of at least three things:

1. Joe Biden's overall position is considerably stronger than Hillary Clinton's was in 2016 (more below).
2. Pollsters figured out that they need to account for educational level, which they are now doing.
3. There was evidence of a small "shy Trump" effect in 2016 (maybe one point). There is no evidence of that this year.

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Q: You have mentioned a few times that the Clinton loss in 2016 could have been partly foreseen with her sharp decrease of safe electoral votes in the days before election. Looking at Joe Biden's numbers, I notice a declining trend in his numbers, both safe (from 320 to 275) and total (from 400 to 300), starting mid-July. In your opinion, is this statistical noise or some early sign of something real? B.V., Paris, France

A: We think it is largely statistical noise.

Take a look at our Electoral-vote Graphs page, which is also linked to the left (immediately below Tipping-point state), and which we update every day. The very first chart shows our EV predictions, including all states. Biden, as you note, has gone from being over 400 to being in the 300-325 range. These totals are the sexy horse-race numbers, but they are also a bit of a mathematical mirage. The second chart on the page is the one that is much more instructive, because it includes only the states that are not statistical ties. In other words, the "safe" states. And on that chart, you will see that both Biden and Donald Trump show considerably less variance. Biden has consistently been between 275-300 EVs, and been above 275 since April, excepting an odd day here or there. Trump has consistently been between 125 and 150 EVs, and has not been above 150 since April.

That same page has the equivalent charts for 2016. If you look at the first 2016 chart (third chart on the page overall), you will see that Hillary Clinton's EV total when including all states was consistently between 275 and 300. But if you look at the second chart (fourth on the page overall), you will see that her "safe" state total plunged right after James Comey's e-mail announcement. Prior to that, Clinton was sometimes at or above 275 "safe" EVs (though she was never consistently at or above that level, like Biden has been). And after Comey, Clinton's "safe" EV total dropped all the way to 215 while Trump's spiked to 185. That left open the potential for Trump to overtake her, assuming he got most or all of the breaks, which he did.

There are a few states that keep moving around this year, almost always within the bounds of "statistical tie." Some of these are large states, notably Texas and Florida. If Joe Biden gets a favorable poll in Florida, his "every state" total can instantly improve by 58 EVs relative to Trump. And if Trump gets a favorable poll in Texas, his "every state" total can instantly improve by 76 EVs relative to Biden. But this movement is largely absent from the "excluding states that are statistical ties" chart. So, that is the one we encourage you to watch. If Biden starts to slide there and, in particular, if the gap between he and Trump on that chart shrinks to less than 75 EVs (it's currently over 150 EVs), then you should get nervous.

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Q: You often refer to Ann Selzer as the "gold standard" for Iowa polling. Other than her track record, what makes you sing her praises so much, and why doesn't she branch out to other states that are more populous and diverse (and less flat)? H.F., Pittsburgh, PA

A: She appears to have a savant-like understanding of what the Iowa electorate will look like on Election Day, and she has also done an excellent job of figuring out how to poll caucuses, a notoriously difficult problem. That is why she has the reputation she does. However, this insight is not especially transferable to other states.

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Q: Right before I read your item about Quinnipiac and Marquette polls that show Joe Biden up by 10 points, I read an article from Forbes about betting odds this election. The writer was not very complimentary toward polls, saying betting odds were more accurate and noted that the betting odds showed the race much closer with Trump even leading according to some bookmakers. What's your take on polls vs. betting odds? J.E., Boone, NC

A: Because bettors are "putting their money where their mouth is," betting odds can sometimes offer some useful insights. However, they aren't great at the extreme margins, since plenty of people are willing to amuse themselves by betting a buck on some absurd outcome, like Dwayne "The Rock" Johnson being elected president, or Rep. Jim Jordan (R-OH) being named Speaker of the House by the end of 2020, or the Chicago Bears winning the Super Bowl. Further, we haven't written nearly as many "betting market" pieces this year as in past years, because it's clear that there's some wonky stuff going on; either Trump lovers betting with their hearts, or Trump haters trying to achieve some arbitrage in case he wins, or Trump supporters trying to create the impression of mass support, or all of the above.

In the end, the goal of polls is to capture, as best as possible, public sentiment at the time the poll is taken. The goal of betting odds, by contrast, is to make sure the correct amount of money ends up on each side of the bet so the book doesn't lose money. When all bettors are acting rationally, then betting odds can be very predictive. But when Derek Jeter is playing his last game, or America's favorite football team—the Green Bay Packers—is playing in the Super Bowl, or the much-loved and much-hated Donald Trump is on the ticket, then emotion enters into the equation. At that point, the betting odds are grossly inferior to polls, and it's irresponsible for Forbes to suggest otherwise.

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Q: Why did the Chicago Daily Tribune write "Dewey defeats Truman" in 1948? How did they come to that wrong conclusion? F.S., Cologne, Germany

A: There are three major reasons. The first is that they trusted the wrong pollsters/analysts (in fairness, polling was still in its infancy). The second is that they hated Truman, were eager to declare him the loser, and bought into the narrative that he could not possibly win. The third is that they were using a not-so-efficient print production system. That, combined with an ongoing printers' strike, meant the Tribune staff had to put the paper to bed much earlier than other outlets (the standard time for newspapers back then was around 9:30 p.m.; for the Tribune on that evening it was more like 8:00 p.m.). As a consequence, they relied on early voting totals (which broke heavily for Dewey) and missed the late vote (which broke very heavily for Truman).

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Q: Just wondering, why does your "COVID-19 context" chart exclude murders as one of the many causes of death? M.B., Philadelphia, PA

A: Because there are about 15,000 murders a year in the U.S., which means murder isn't even among the top 10 most common causes of death annually. If we did include murder victims, then folks who have lost someone to Alzheimer's (#6), diabetes (#7), flu/pneumonia (#8), kidney disease (#9), or suicide (#10) might rightly ask why those who were murdered are more worthy of notice than their loved ones.

Today's Presidential Polls

Berkeley must be offering a class called Poli Sci 140: Polling Science, since beyond giving the students some practice, we can't think of any other reason to poll the presidential race in California. The only really useful poll here is the fourth one, which reminds us again that the Trump campaign's "invest in Minnesota" initiative does not seem to be working. (Z)

State	Biden	Trump	Start	End	Pollster
California	67%	28%	Sep 09	Sep 15	U. of Calif. at Berkeley
Maryland	62%	30%	Sep 04	Sep 11	OpinionWorks
Maine	50%	39%	Sep 17	Sep 23	Colby Coll.
Minnesota	47%	40%	Sep 20	Sep 24	Suffolk U.

Today's Senate Polls

That's fifteen polls in a row where Gideon has come out ahead of Collins. The only poll where Collins came out on top, which is not in our database, was taken in June. Of last year. And Gideon usually leads by statistically significant margins. She's a clear frontrunner at this point, and that's before Collins has had to take lose-lose votes on the Supreme Court. (Z)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Maine	Sara Gideon	45%	Susan Collins*	41%	Sep 17	Sep 23	Colby Coll.
Minnesota	Tina Smith*	45%	Jason Lewis	35%	Sep 20	Sep 24	Suffolk U.

* Denotes incumbent

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---The Votemaster and Zenger