Feb. 27

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Takeaways from the South Carolina Debate

Yesterday we gave our take on the debate. Here are some from major media outlets:

Huffington Post NPR New York Times Washington Post Axios Los Angeles Times Bloomberg News Yahoo News The Hill Deseret News

The major themes seem to be:

That's it until the next debate on March 15, probably with fewer participants. (V)

Clyburn Endorses Biden

Rep. Jim Clyburn, the #3 Democrat in the House and the godfather of South Carolina politics, yesterday did what everyone expected him to do, which was to endorse Joe Biden for president. Biden needs a big win in South Carolina's primary on Saturday, and so an endorsement from the state's most popular and powerful Democrat is extremely welcome. Clyburn is black, as are 60% of the state's Democrats, so his endorsement will also have an effect in the Super Tuesday states with large black populations, such as California, Texas, and North Carolina.

Clyburn has known Biden for decades, as they served together in Congress for years, albeit in different chambers. At the announcement, Clyburn said: "I know Joe, we know Joe, but most importantly, Joe knows us." Clyburn also taped an ad for Biden that will play throughout the state until primary day. Endorsements have questionable value these days, but Clyburn is so respected by South Carolina Democrats, that his may give Biden an actual boost, something he desperately needs. (V)

Poll: Biden Has a Huge Lead over Sanders in South Carolina

A new poll from South Carolina's Clemson University has Joe Biden with a 22-point lead over Bernie Sanders. Here are the numbers:

Candidate Pct.
Joe Biden 35%
Tom Steyer 17%
Bernie Sanders 13%
Elizabeth Warren 8%
Pete Buttigieg 8%
Amy Klobuchar 4%
Tulsi Gabbard 2%

These numbers differ quite a bit from other recent polls that have Sanders in second place and much closer to Biden. The poll was taken Feb. 17-25 (so, before the debate). However, 57% of the respondents were black, so that seems about right. That said, given Clemson's lack of a track record in polling, and the outlier results, take it with a cup of salt. (V)

Schumer and Pelosi Would Be Comfortable with Sanders as Nominee

At the debate Tuesday night, several Democrats said that Sanders would be a drag on downballot Democrats. However, somewhat surprisingly, Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) both had the opportunity to agree with that assessment yesterday and didn't do so. When Pelosi left a meeting yesterday and was asked if she would be comfortable with Sanders on top of the ticket, she replied with a single word: "Yes." She could have easily deflected the question by saying she will support the Democratic nominee, no matter who it is. But she didn't. She answered the question directly.

Schumer was a bit more cagey. His answer was: "Look, we have a lot of strong nominees ... I'm not supporting one over the other, but I think every one of them will beat President Trump."

There is no doubt that if Sanders is the nominee, both leaders will do everything in their power to get him elected, even if he was not their first choice. In fact, they will do that even if he was their last choice. They can't afford to see the Democratic Party split after someone wins the nomination, as that would hurt candidates for the House and Senate as well. (V)

Five Thirty Eight's Super Tuesday Predictions

Nate Silver's website Fivethirtyeight.com has a model that attempts to predict who will win each of the primaries on Super Tuesday, and how many delegates each candidate will win. Here are the predictions:

State Biden Bloomberg Buttigieg Klobuchar Sanders Warren
California 79 39 21 2 227 47
Texas 70 43 7 1 87 18
North Carolina 34 27 4 1 39 6
Virginia 26 26 7 1 36 3
Massachusetts 12 9 9 1 36 24
Minnesota 5 1 3 28 29 7
Colorado 11 8 4 0 35 9
Tennessee 20 16 2 0 21 5
Alabama 22 13 1 0 13 2
Oklahoma 10 11 2 0 11 3
Arkansas 7 9 4 0 10 1
Utah 3 4 1 0 17 3
Maine 3 4 3 0 11 3
Vermont 0 1 1 0 13 1
American Samoa 2 1 0 0 2 1
Total 305 211 70 38 587 132

Note that Fivethirtyeight gives percentages, which we have translated into delegate totals. However, because of rounding, the totals don't always add up perfectly.

Anyhow, there are many caveats here. First, the model takes into account a lot of factors, including polling averages, demographics, geography, state fundraising, and much more. Each of these is tricky enough, but figuring out how much weight to give to each factor is also problematic. Second, the model doesn't (and can't) take into account how voters reacted to Tuesday's debate. Third, the model doesn't take into account Saturday's South Carolina primary. If somebody does especially well or especially poorly, many voters could change their minds before next Tuesday. Fourth, the model is probabilistic, with the results representing the average of thousands of runs. The model is explained here.

If the model is more or less on target, Bernie Sanders will come out of Super Tuesday with the most delegates (587), which is 44% of the total to be awarded that day. A likely consequence of the Super Tuesday voting is that some of the candidates will drop out, meaning that the moderates will be a little closer to agreeing on a candidate. This could hurt Sanders going forward, because if there are only two or three moderates in future primaries, most likely they will pass the 15% threshold almost everywhere and thus get delegates. Will this mean there might be a brokered convention? Who knows? What we do know is that if Sanders comes into the convention with 44% of the delegates and doesn't get the nomination, all hell will break out, large numbers of Sanders' supporters will either vote for a third party or not vote, and Donald Trump will probably be reelected. If, in the end, say, Sanders has 34% of the delegates, Joe Biden has 32%, and Michael Bloomberg has 20%, then it is possible that Biden gets the nomination and still wins the general election. (V)

He Hasn't Been Here

Another thing the 538 model can't measure, except indirectly, is how good the candidates' ground games are. Or if they even have a ground game. In particular, Joe Biden barely has a ground game at all, even in California, which has the most delegates up for grabs next week. His operations in most of the Super Tuesday states are dwarfed by those of Bernie Sanders and Michael Bloomberg. Sanders' is based on volunteers and Bloomberg's is based on paid staff, but having many offices in a state, no matter how they are staffed, beats not having any offices at all.

One of Biden's biggest problems is that he is close to broke, and both Sanders and Bloomberg have more or less unlimited funds. In addition, Sanders has a vast army of volunteers that Biden simply doesn't have. As a consequence, Biden has essentially no presence in many of the Super Tuesday states, and he hasn't even visited some of them. It is not a good sign when your own supporters are complaining "He hasn't been here."

One thing that Biden does have going for him is that black voters like him a lot and have no particular affinity for either Bloomberg or Sanders. In states like California, Texas, North Carolina, Virginia, Tennessee, and Alabama, there are congressional districts with large black populations where he could scoop up delegates. Still, running an underfunded, understaffed campaign where the candidate himself doesn't even bother showing up is not likely to be a winning formula for Biden. (V)

Are Primaries Being Done Wrong?

An editorial in the New York Times points out something that is obvious once you think about it: The current primary system allows a candidate to win without broad support within the party. We certainly saw this in the 2016 Republican primaries and may see this in the 2020 Democratic primaries.

In some of the 2016 Republican primaries, the candidate with the most votes got all the delegates, even if that candidate was under 50%. For example, in South Carolina, Donald Trump won 33% of the votes but got all the delegates. The two-thirds of South Carolina Republican voters who didn't want Trump got no representation at the Republican National Convention.

This year, the Democrats have a different problem, but also one that relates to the voting system. Voters who prefer a candidate who they think would make a good nominee but is trailing in the polls—say, Sen. Amy Klobuchar (DFL-MN)—have to choose between voting for whom they really want or someone they think might win. Also, the proportional representation scheme the Democrats use has the peculiar effect that if progressive or moderate voters are split more ways than the other ones, that could end up determining who wins. Currently, there are two progressive Democrats and five moderate Democrats, so the moderate vote is being fragmented more than the progressive vote, but in 2024 it could easily be the other way around. The problem is structural in the system and exists for both parties.

The Times suggests using ranked-choice voting (also called instant-runoff voting). In this scheme, a voter picks a first choice, second choice, etc. After the votes are counted, if no candidate has hit 50%, the lowest candidate is eliminated and that person's votes are redistributed based on the second choice. The process is repeated until some candidate hits 50%. This assures that the party will pick a candidate with broad support, not just the one with slightly more votes than any of the others.

Consider the 2016 New Hampshire Republican primary, which Trump won with 35% of the vote. If RCV had been used, successively Sen. Rand Paul (R-KY), Ben Carson, Carly Fiorina, then-governor of New Jersey Chris Christie, Jeb Bush and Sen. Marco Rubio (R-FL) would have been eliminated and their 36% of the votes would have been redistributed to their second, third, or lower choices. Most likely, very few would have gone to Trump. Probably, the #2 Republican in the race then, John Kasich, would have ended up with most of them and would have won New Hampshire and gotten the momentum that brings. In any event, the 2016 Republican primaries were about Trump, Sen. Ted Cruz (R-TX), and about a dozen or so moderate Republicans. Trump won because the moderates were split among Kasich, Bush, Rubio, Christie, Fiorina, and some others even though the moderates combined had more votes. A similar dynamic may play out with the Democrats this year with the moderates being in the majority but fragmented. RCV greatly increases the chance that if some "wing" of a party is in the majority, the candidate will come from that wing.

We will get a chance to see how RCV works in practice in primaries this year, as four states are using it. These are Alaska, Hawaii, Kansas, and Wyoming. The way it will work is that if some candidate fails to make the 15% cutoff, ballots for the lowest-ranking candidate will be redistributed to the candidates still in contention. The process will be repeated until every candidate is above 15%. In principle, the redistribution could continue until some candidate hit 50%, although that is not how it will work this year. But in the future, it could work like that to ensure a broadly acceptable nominee. (V)

Schumer Meets with Bullock

Chuck Schumer zipped over to Montana last weekend to meet with Gov. Steve Bullock (D-MT). It is no mystery why he went, and it doesn't relate to Montana's natural beauty. Sen. Steve Daines (R-MT) is up for reelection and the Democrats don't have a candidate. If the term-limited governor were to enter the race, it would instantly become a toss-up instead of likely Republican. Bullock has previously said he is not interested. But so did former Colorado governor John Hickenlooper until he changed his mind and jumped in. Hickenlooper is probably a slight favorite now. So Schumer desperately wants the popular Bullock to challenge Daines. The filing deadline is in 2 weeks.

Bullock, who is term-limited and will be leaving his current job on January 4, 2021, never really explained why he doesn't want to run. He is relatively young (53) and most people see being a senator from a low-population state as a promotion from being governor. With high-population states, like California or Florida, it is a tougher call which job is more important. But for a young guy like Bullock, he could serve for 20 years and possibly become chairman of an important Senate committee and then continue in that position for a decade or more. He ran for president this cycle and didn't make it, so realistically, the only big-time position in politics that he could achieve in the short-term is senator from Montana. That would also give him a good springboard for a future presidential run.

Montana is quite red in presidential elections, but much less so for other statewide offices. Since 1900, 19 people have been elected senator from Montana, 14 of them Democrats. The representatives have been somewhat less Democratic since 1900, with 16 Democrats, 18 Republicans, and one Populist elected. Of the 21 governors elected since 1900, eight have been Democrats and 13 Republicans. The current other senator is Jon Tester (D). So Bullock certainly isn't afraid to run because he thinks he would be wiped out. Moreover, he knows that he has personally won gubernatorial elections twice. We'll know within 2 weeks if Schumer pulled him over the line. (V)

Trump Asks for the Wrong Recusals

Just imagine: Nancy Pelosi tells Chief Justice John Roberts that she wants him to order the release of Donald Trump's tax returns before April. Or Justice Elena Kagan tells Senate Majority Leader Mitch McConnell (R-KY) that she wants a law banning gerrymandering and she wants it right now. Didn't happen, and not likely to happen, because the people in two-thirds of the branches of government understand that they are not supposed to interfere with the operations of the other ones. Not so with the executive branch. While in India, Donald Trump told Justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from deciding any cases involving himself. Both of them held their tongues and didn't fire back. Roberts has previously gone after Trump for claiming there are "Bush judges" and "Obama judges," but this time the Chief Justice didn't respond.

What would have made sense—but sense is not Trump's forte—is Trump asking his appointees to the Supreme Court, Neil Gorsuch and Brett Kavanaugh, to recuse themselves. Unlike his actual requests, that might have had some reasonable basis, since justices are expected not only to be impartial, but also to avoid even the appearance of any bias. If the Trump appointees vote to keep Trump's tax returns secret, despite a 1924 law unambiguously stating that the secretary of the Treasury shall turn over to the chairman of the House Ways and Means Committee any tax return he requests, it could look like a quid pro quo.

The head of the Lawyers' Committee for Civil Rights under Law, Kristen Clarke, said Trump's call was "deeply disturbing and unprecedented." Even AG William Barr has said that Trump should stop getting involved in ongoing legal cases (though it's still an open question as to exactly how genuine a sentiment that was).

It is not unheard of for Supreme Court justices to recuse themselves from cases, but they are the ones who make the call, not the president. For example, in 2008, Justice Samuel Alito recused himself from a case involving an Exxon tanker that had spilled 50 million gallons of oil off the coast of Alaska because he owned stock in Exxon. Even stronger, when Elena Kagan became a justice, she recused herself from 20 cases she had been involved in as solicitor general before her appointment. But that was her call and no one else's. (V)

Court Rules that Trump Can Withhold Money from "Sanctuary Cities"

The U.S. Court of Appeals for the Second Circuit, which is based in New York, has overturned a lower court ruling that bans the administration from punishing so-called "sanctuary cities" for not helping the feds round up undocumented immigrants. The case arose in 2017 when then-AG Jeff Sessions announced that applicants for certain federal funds would have to comply with federal immigration enforcement. Seven states and the city of New York sued to block Sessions' action. They won in a lower court, but the circuit court overturned that decision.

Similar cases are ongoing on other circuits. In April 2018, the Seventh Circuit Court in Chicago upheld a ruling saying that cities couldn't be punished for refusing to cooperate with the feds on immigration. Appeals courts in San Francisco and Philadelphia also ruled against the federal government on similar cases. Now that four circuit courts have made contradictory rulings on the matter, it is certain to be heard in the Supreme Court, as the High Court does not like it when jurisprudence is different in different circuits.

Federal law has long prohibited states and cities from refusing to share information about citizenship status of arrestees, but until Sessions was AG, there has never been a concerted attempt to force states and cities to comply by withholding funds. In a related matter, the Trump administration has also blocked residents of New York State from signing up for Trusted Traveler programs as a punishment for the state not cooperating with immigration authorities, even though that maneuver has no basis in law. Once it has been established that the federal government can withhold money and privileges from states for not doing what the current administration wants, the whole concept of the rule of law falls apart. A future Democratic president could close military bases in Texas because he or she simply doesn't like Texas' position on gun laws, or could deny passports to residents of Alabama because he or she thinks Alabama is not doing a good job enforcing federal civil rights laws. (V)

Trump Campaign Sues the New York Times

As long as we're on a run of items about Donald Trump's trampling on the Constitution, let's do another. On Wednesday, the Trump campaign sued the New York Times for libel, in response to a March 2019 op-ed written by Max Frankel. The argument that Frankel made was that the Trump campaign and the Russian government did not collude with each other in an intimate/daily fashion. Instead, all they needed—and what they had—was a quid pro quo that the Russians would hurt Hillary Clinton and in exchange Trump would adopt a more conciliatory policy toward the Putin administration.

There is zero chance that this lawsuit succeeds. The bar in any libel case is sky-high, and requires the plaintiff to prove that the entity that published the information either knew it was false, or was unreasonably reckless in failing to check its veracity. Since the piece represents a reasonable (whether correct or not) assessment of existing information, and since it was specifically labeled as "opinion," the Trump suit will fail spectacularly on that test alone. On top of that, a plaintiff has to be able to prove that they were specifically harmed by the particular alleged instance of libel. Not easy to do in this case, given the hundreds of thousands of Trump-critical op-eds, blog posts, articles, tweets, etc., published each year. And finally, the bar for libeling a public figure is extra high. Indeed, one could set out with the specific goal of libeling a president, and it would be pretty hard to cross the line far enough to be at real risk of civil liability.

Undoubtedly, the President's lawyers know all this. That means that they are either humoring him, or they are willing participants in what he's trying to accomplish. Either way, Trump's goal is crystal clear: He wants to throw a scare into outlets that might be thinking about writing a nasty item about him, particularly if that item makes use of the phrase "quid pro quo." There is zero chance that the Times is cowed, even slightly, by Trump, since they have plenty of money for lawsuits, and their attorneys may just have a passing familiarity with libel law. Will some smaller outlets be intimidated, though? It's certainly possible. And whether or not the gambit works, this is, in many ways, Trump's most aggressive attempt yet to stifle a free press. (Z)


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