The Voting Wars Have Now Officially Begun

Republicans don't bother with being subtle anymore. They want to make voting, especially voting by Democrats, much harder, and they don't care how obvious they are about it. A new Georgia law signed by Gov. Brian Kemp (R-GA) goes after voting procedures with an axe and makes them more onerous in multiple ways. Specifically, the new law includes these features, among others:

• A requirement that absentee ballot requests come in at least 11 days before an election
• Absentee voters will need to supply photo ID with their ballot
• Drop boxes may be located only at early-voting locations and available only during voting hours
• Drop boxes will be removed 4 days before the election, requiring absentee voters to use snail mail
• Puts the legislature in charge of voting, not the secretary of state or local election officials
• Eliminates the jungle primary and reduces the interval until the runoff
• Eliminates statewide voting on Sundays for runoffs, to block "souls to the polls"
• Makes it a crime for volunteers to provide food or drinks to people standing in line to vote
• Eliminates provisional ballots for people who show up at the wrong polling place
• Eliminates the mobile-voting vans that help non-mobile voters to vote
• Has the polling places for early voting close at 5 p.m.
• Allows any Georgian to challenge the right to vote of an unlimited number of voters

In all, the changes tend to force more voters to vote on Election Day. Is that politically neutral? In theory, it might be. In practice, certainly not. Georgia election officials make sure there are plenty of polling places in white, Republican areas and many fewer in Black, Democratic areas. A study of how long people had to wait in line after the official 7 p.m. closing time in 2020 showed that in white areas it was 6 minutes but in Black areas it was 51 minutes. Coupled with the ban on volunteers bringing people food and drink, this has the effect of making it more likely that Black voters than white voters will give up and go home.

Donald Trump approved the new law, as you might imagine. Whether this will get Kemp off the hook remains to be seen, however. Absent the law, Trump would have worked hard to defeat him in a primary. Now...well, with Trump you never know.

Joe Biden reacted quickly to the law, saying it is an "atrocity." He called it "Jim Crow in the 21st century." He specifically mentioned the earlier poll closing times, which makes voting harder for people who can't take time off to vote during the daytime, and the voter ID requirement for absentee ballots. He also criticized the provision that forbids volunteers from passing out food and drink to people waiting in line to vote because those lines were created by the state reducing the number of polling sites in Black communities.

Yesterday, Fox News' Chris Wallace asked Sen. Lindsey Graham (R-SC) to explain the logic of making it a crime to pass out free bottles of water to people waiting in line. Ever the coward, Graham refused to say what he knows to be true, namely, the GOP hopes that thirsty Black voters will go home and not vote. So, he agreed it didn't make any sense, then started complaining that H.R. 1 is sick.

Very soon, the 3-D chess game will begin. The opening move will be for the Democrats to revise H.R. 1 so that all of them can live with it. This means removing many of the progressives' priorities that don't have anything to do with voting. Then they will "reform" the filibuster and let the Republicans read the phone books of multiple states on the Senate floor for 2-3 weeks until they drop. When every senator has had his say (and we really mean "his" and not "his or her" this time), the Democrats will ram it through the Senate 51-50.

As soon as Joe Biden signs the law, probably before the ink is dry, a dozen or more Republican AGs will sue to have the law overturned. In the fullness of time, the case will land before the Supreme Court. Everything important ultimately lands there. What will the Supreme Court do? Art. I, Sec. 4 of the Constitution begins with this sentence:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The six conservative justices don't like "governing" by overturning laws passed by Democrats. They prefer Republicans to pass laws, which they can conveniently accept by just saying: "This is what the people's representatives wanted." But the justices know that if H.R. 1 stands, then Republicans aren't going to win many elections anymore except in very red states and districts.

The conservative justices have various options here. One is to focus on the word "Manner." They could say that Congress can decree that election ballots must be on 8½" x 11" paper with printing in 12-point Helvetica using black ink with ¼" circles to be filled in or boxes to be checked. Or Congress could say that each voter is given a packet of colored cards corresponding to the candidates plus a plain white envelope and instructions to place exactly one card in the envelope before dropping the sealed envelope in the ballot box (as is done in France). In other words, they could interpret "Manner" as relating only to the technique by which votes are physically cast, and nothing more. They could rule that allowing everyone to vote by absentee ballot and the other things in H.R. 1 is way beyond what "Manner" means.

Could the justices actually do this? Well, in the Shelby County decision, they gutted the Voting Rights Act because, well, they could.

While they prefer to have actual words in the Constitution or the law to back up their decisions, it isn't essential. Consider the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The framers put in that wording because in the 18th century the standing army was tiny-to-non-existent (depending on what year we're talking about). If the British showed up, Paul Revere, William Dawes, Samuel Prescott, and Israel Bissell got on their horses and went riding through the countryside telling every able-bodied man to show up at the town square with his gun, with Revere getting all the credit because his name rhymes with more stuff. "Militia" then meant something like "National Guard" or "deputy officers." These were private citizens who performed military service as needed, on an ad-hoc basis. The Constitution clearly ties gun ownership to militia service of this sort. Despite this wording, in District of Columbia v. Heller, the Court acted as though the wording was:

In order to protect their families and property, the right of the people to keep and bear Arms, shall not be infringed.

That's not what the actual words say, but words mean whatever five or more justices say they mean.

So what else could happen in our 3-D chess game? After the oral arguments have been heard, a staff member of some high-profile member of Congress, say, Rep. Alexandria Ocasio-Cortez (D-NY), could call Chuck Todd and say that if he wants a scoop, he should invite her to be on "Meet the Press." He does and asks her about the pending Court case. She replies: "Well, Chuck, I love blackjack, and you need 21 points to win, so I adore the number 21. If the Court strikes down H.R. 1, I will personally introduce a bill to expand the Court to 21 justices."

Later in the day, Majority Leader Chuck Schumer (D-NY) could "attack" her saying: "That is much too extreme. I favor a more moderate approach: 15 justices." That establishes 15 as the "moderate" position. The justices follow the news. Would they still be willing to strike down the law knowing that would mean getting six new colleagues, probably none of them straight white men? Who knows? The mere threat of an expanded Court might frighten the justices into refraining from killing the law. FDR threatened to "pack the court," but his mere threat made it much more compliant so he didn't have to.

Possibly SCOTUS could stay any lower court rulings until after the 2022 election, so the Georgia and similar laws would be in effect and greatly increase the chances of the Republicans capturing the House. Then after the election they could strike down the law since a Republican-controlled House would never agree to pack the Court. Could the Democrats pre-emptively do that? Anything is possible but it is pretty hard to read the tea leaves this far in advance. What we do know is that Kemp's signing that bill may seem fairly unimportant, but that was also true in the late 1840s and early 1850s, when a few members of the U.S. Senate said: "Let's let new states decide for themselves whether or not to have slavery. What could go wrong?" (V)

Taxes Are Going to Go Up for Corporations and the Wealthy

Sen. Bernie Sanders (I-VT) wants to increase taxes on corporations as well as estates...to the tune of $3 trillion. That Sanders wants to tax big companies is hardly news. He's wanted that his entire life. But for his entire life before Jan. 3, 2021, he wasn't chairman of the Senate Budget Committee, which has considerable influence on the tax laws (although it is the Senate Finance Committee, chaired by another progressive senator, Ron Wyden, D-OR, that actually writes the words in the tax laws, in conjunction with House Ways and Means Chairman Richard Neal, D-MA). It matters who runs these committees because Joe Biden wants Congress to pass a $3-trillion infrastructure package. Sen. Joe Manchin (D-WV), whose vote will be critical, has said that he will vote for Biden's bill provided that it is paid for by taxes, not by debt.

One of Sanders' proposals would raise $1.3 trillion by putting the corporate tax rate back to 35%, where it was before the Republicans' dropped it to 21% in 2017. It will also generate another trillion by changing the ways multinationals are taxed in order to make it harder to escape taxation using various gimmicks. For example, many multinationals own patents that they use heavily in their businesses. They typically move the ownership of the patents to a subsidiary in a country that has a low corporate tax rate. In Ireland it is 12.5%. In Montenegro it is only 9%. In the Bahamas it is 0%. Then the main company licenses the use of the patents from the subsidiary for an insane amount of money, causing it to have no profit. No profit means no tax. The patent-owning subsidiary then has all its profits, but if it is located in, say, the Bahamas, it pays no corporate tax. Sanders wants to end this shell game. He also wants to greatly raise the estate tax on large estates.

Wyden's ideas are similar to Sanders' in many ways. In particular he also wants multinational corporations to pay more. One idea that both he and Sanders want is some kind of minimum tax on U.S.-based corporations that earn income abroad. But if they do that, they will simultaneously have to deal with inversions. A typical scenario here is that a giant U.S. corporation buys a much smaller company in some country with a low or zero corporate tax rate and then "moves" the headquarters to the foreign country. Presto! It is no longer a U.S. company. In reality, nothing changes on the ground, with the executives still operating from the offices they always used and the products and services being the same as they were before the inversion. Only the legal documents and tax situation change. Examples of inversions include medical device maker Medtronic "moving" to Ireland and insurance company Everest Re Group "moving" to Bermuda. Any change in the tax rates will have to tackle inversions or it won't work.

Joe Biden also wants to raise taxes on corporations and the wealthy, but he doesn't have a plan yet. In any event, Congress passes the tax laws, so Sanders, Wyden, and Neal are key players here. Most Democrats want to undo much (but not all) of the 2017 tax-cut law. However, it is clear that no Republican will be on board with a tax increase, so any Democratic plan will need the support of all 50 members of the Democratic caucus in the Senate. That will require some serious sausage making, but is doable. Issues like whether the corporate rate goes from 21% to 25% or 28% or 35% can usually be handled by giving a recalcitrant member some goodie elsewhere in the package or in the related spending package. Is there a "nowhere" in West Virginia that could use a bridge? Hell, it doesn't even matter if anyone ever uses the bridge as long as lots of workers are hired to build it.

Republicans are not going to help at all. For example, Sen. Shelley Moore Capito (R-WV), the ranking member of the Committee on the Environment and Public Works, has noticed that owners of electric cars don't pay the gas tax since they don't buy gas, so she would like to tax electric cars somehow. Needless to say, this is not going to fly with the Democrats since they want to encourage people to buy electric cars, not discourage them.

Discussions among the key players are already underway. Republicans will say if the tax bill passes, the sky will fall. Democrats will advise them to buy stock in companies that make roofing materials—oh wait, that would be insider trading and Republicans would never do that. In any event, we'll know more as the sausage begins to emerge from the grinder in a few weeks. (V)

Dominion Sues Fox News for $1.6 Billion

The voting machine vendor Smartmatic got the ball rolling by suing Fox News for $2.7 billion for defamatory claims that its machines were rigged to help Joe Biden. Now Dominion Voting Systems, another voting machine company, is jumping in as well. It is suing Fox for $1.6 billion. That's not as much as Smartmatic, but it is still serious money, even for Fox, which had pre-tax earnings of $3 billion in 2020 based on revenue of $12 billion.

In its suit, Dominion claims that "Fox took a small flame of disinformation and turned it into a forest fire." It specifically mentioned Sean Hannity, Tucker Carlson, Maria Bartiromo, Lou Dobbs and Jeanine Pirro, the latter three of whom are also named in the Smartmatic suit. Dominion has requested a jury trial. The complaint, which runs to 139 pages, was filed in Delaware Superior Court.

This is not Dominion's first lawsuit about the election. In January it also sued Rudy Giuliani, Sidney Powell, and Mike Lindell for $1 billion each. None of them have that kind of money should they lose, but Fox does and could be forced to pay if it loses.

Dominion has hired the Susman Godfrey law firm to handle the case, along with in-house counsel. Susman Godfrey is known for taking cases to trial. In this kind of case against a broadcaster, they will have to prove that Fox showed reckless disregard for the truth and actual malice. Of course, they can easily get hours of footage of Fox hosts lying over and over and that could sway a jury, which is why Dominion wants a trial by jury and hired a law firm that is known to be very good at trials. A judge might be more concerned by the fine points of the law, but a jury member could summarize the case during deliberations by saying: "Fox hosts lied over and over about the company and those lies cost the company millions of dollars in sales and badly damaged its reputation." (V)

Another Autopsy Looks at Why Democrats Lost House Seats

A study of the 2020 House elections by a moderate Democratic think tank, Third Way, sheds light on why Democrats lost seats in the House and what they should do about the problem in 2022. The study showed that Republicans were calling all Democrats socialists everywhere, but in districts where that was closer to the truth, it stuck.

Progressives have said that running progressive candidates will bring out new Democratic voters, but the study indicates that the losses among moderates more than offset that, for a net loss. What the study did is look at 11 Democratic challengers endorsed by three progressive groups (Our Revolution, Justice Democrats, and Brand New Congress) and compare them to a group of 29 challengers endorsed by the NewDem Action Fund, which is supported by moderate House Democrats. By looking at which groups supported the challengers, the researchers didn't have to decide which candidates were progressive and which were moderate.

In the 40 districts studied, the progressive candidates underperformed Joe Biden by 7 points on the average but the moderates underperformed him by only 4 points. By comparing the challengers to Biden, rather than to the Republican, some of the criticisms of the form "but that was a red district" or "but that was a blue district" go away. In the districts House Democrats had selected as most likely to flip, progressive candidates underperformed Biden by 10 points while moderate candidates underperformed Biden by 4 points.

For example, in NE-02 (PVI R+4), Biden beat Trump by 7 points, but progressive favorite Kara Eastman lost by 5 points. In contrast, in fairly blue districts, like NY-17 (PVI D+7), progressive candidates outperformed Biden. The conclusion is that in swing districts, progressive candidates cost the Democrats a substantial number of seats whereas in deep blue districts, progressive candidates did great. The message that progressives ought to take away from this study is that they should concentrate on knocking off moderate Democrats in primaries in heavily Democratic districts in order to elect progressives without costing the Party seats. Correspondingly, they should not run progressive candidates in districts where that will probably cost the Party the seat. In NE-02, not only did no hidden Democrats come out of the woodwork, but 12% of the people who voted for Biden voted for the Republican House candidate.

Another way of putting this is that the candidate has to be a good match for the district. If the district is very liberal, a very liberal candidate will do just fine and get elected easily. However, in a swing district or a district that leans Republican, the number of marginal Democratic voters that a progressive candidate brings out is no match for the number of Democrats who pick Republicans downticket.

Here is the distribution of districts by their PVI:

District type	PVI range	Number
Solid D	D+10 to D+44	122
Lean D	D+6 to D+9	43
Swing D	D+1 to D+5	27
Even		8
Swing R	R+1 to R+5	45
Lean R	R+6 to R+9	54
Solid R	R+10 to R+33	136
Total		435

The first thing to notice is that there are 192 D+x districts and 235 R+x districts. This is the result of the successful Republican wins in state legislatures in 2010 and the subsequent gerrymandering. Republicans did well again in the state legislative races in 2020, in part due to Democrats fielding progressive candidates for state legislature seats in districts a more moderate Democrat might have won. The punishment will be 10 more years of districts gerrymandered by the Republicans, in some states (unless H.R. 1 passes and the Supreme Court approves of it).

The lessons progressives should take from this study is that they should focus all their efforts on the 122 districts that Democrats can't lose and make sure all 122 of these Democrats are progressive. That is no small prize. A House caucus with 122 progressives would have an enormous impact. They can also try in the 136 deeply Republican districts because there is no downside there. But they should avoid contesting the districts in the middle, especially the 80 swing districts where a progressive candidate runs the risk of losing the district altogether, as did Eastman. (V)

Bannon Could Face State Charges

Steve Bannon is the kind of guy Donald Trump admires: a grifter who plays loose with the rules. He is also a far-right populist who co-founded Breitbart News. What's not to like? He was the CEO of Trump's 2016 presidential campaign and later chief White House strategist. He's the kind of guy Trump would feel comfortable around, swapping stories of how they ripped off dumb suckers. Bannon undoubtedly has a lot of dirt on Trump. Trump pardoned him because Bannon is the kind of guy who, faced with a choice of saving his own neck or Trump's, would definitely choose the former.

It may not work. One of Bannon's more recent scams was to tell people that he was raising money to buy land and build a wall along the Mexican border using private donations. The money poured in and Bannon kept it. No wall was built. Now, New York State is curious about whether Bannon defrauded any donors in New York State, a state crime for which the pardon does not serve as a get-out-of-jail-free card.

Specifically, Manhattan D.A. Cyrus Vance and New York AG Letitia James have teamed up to investigate Bannon. It is fairly unusual for these two offices to work together on a potential crime, but they are looking at a serious crime and a high-profile suspect, so apparently they think they can help each other.

A serious complication for Bannon is that in the federal case, three people (Andrew Badolato, Brian Kolfage, and Timothy Shea) were named as co-defendants along with Bannon. They did not receive presidential pardons. This means the Feds can (and certainly will) squeeze them to rat on Bannon on matters related to the state case. In fact, the U.S. attorney's office in New York is already preparing for their trial. (V)

Raffensperger Is in Trouble

For his stand defending the vote count in his state, Georgia Secretary of State Brad Raffensperger (R) is almost certain to lose his job. Donald Trump is going to pull out all stops to defeat him in the Republican primary in 2022. Most Georgia Republican politicians oppose him. The bill that Brian Kemp just signed strips him of much of his power. While Democrats appreciate his courage, honesty, and dedication to the law, they would still prefer a Democrat to be elected secretary of state in 2022, even with reduced powers, especially since Raffensperger opposes H.R. 1, a Democratic priority. Raffensperger is alone, without friends. He is the poster child for what happens to a Republican politician who refuses to accept the Big Lie that Trump won.

The chairman of the Cobb County GOP, Jason Shepherd, says that he has friends who are completely uninvolved in politics who tell him there is no way they will vote to reelect Raffensperger. The hatred of Raffensperger goes even deeper than the county level. He wanted to be a delegate to the upcoming state Republican Party convention and couldn't find anyone in his home precinct who was even willing to nominate him.

Interestingly enough, a recent poll shows that Raffensperger is the most popular Republican politician in Georgia, outpacing both Kemp and Trump. The rub here is that he is mostly popular with Democrats, who give him a 60% approval rating, vs. 45% for Republicans. But popularity with Democrats is not going to help him in the now-divided-by-party primary.

His main primary opponent will probably be Rep. Jody Hice (R-GA), a full-blown Trumper who is angling for the former president's endorsement and is likely to get it. However, David Belle Isle, the former mayor of Alpharetta, is running, and others may enter the race as well since the primary is well over a year away.

If Raffensperger is defeated in the primary, and especially if he loses in a rout, it will send a clear message to all Republicans: "If you don't kowtow to Trump, your career is over." This may be good for Trump, but it could be disastrous for the Republican Party. (V)

Biden's Approval on COVID-19 Hits 75%

Steve Bannon and Brad Raffensperger may be in deep doodoo, but Joe Biden is riding high. A new ABC News/Ipsos poll has his handling of COVID-19 at 75%. In addition, 60% approve his handling of the economic recovery. Any other politician would kill for these numbers. There is a predictable partisan divide on the way he is handling vaccine distribution, with 92% of Democrats, 77% of independents, and 53% of Republicans approving of how he is doing it.

In the wake of two high-profile mass murders, one in Georgia and one in Colorado, Ipsos also asked about gun violence. By a two-to-one margin, Americans want new laws to reduce gun violence. However, nine in ten Democrats want new laws, only 36% of Republicans do. In fact, 64% of Republicans say that a higher priority is protecting the right of Americans to own a wide variety of guns than restricting gun ownership. (V)

Biden Has Frozen the 2024 Field

Joe Biden's casual answer to a question at his press conference last week, remarking that he was planning to run for reelection, coupled with a 75% approval rating on the biggest issue of the day (which suggests that he would win easily if he did), has frozen the 2024 presidential field. No Democrats dare to act like they are running, since that would put them in direct conflict with their extremely popular leader. That would be political suicide, even if Biden decides at the last minute not to run.

For Republicans, the effect is even bigger. Running for an open seat is pretty straightforward with a decent chance for success, but running against an enormously popular president is a whole other kettle of fish. Maybe it would be better to wait until 2028. But no Republican (or Democrat) knows if Biden is serious or just bluffing to avoid becoming an instaduck. If he really has no intention of running, what makes the most sense is to maintain that he is planning to run until the summer of 2023, then suddenly announce that he has accomplished all his policy goals so he is retiring. If the Republicans control either chamber of Congress then, he won't be able to do anything, so he will be a de facto lame duck anyway. If the Democrats control both chambers, maybe his new duckhood will hurt a little, but by then he will either have achieved most of his goals or will never achieve them.

One other factor here is Donald Trump. If in the summer of 2023 Biden believes Trump will run in 2024, he may decide to go for another term even if he was planning to retire because he knows he is by far the strongest candidate against Trump. He probably wouldn't take the risk of a massive Democratic primary brawl followed by a Trump win. If Biden has hidden health problems but is physically capable of running, he might do so and then resign in his second term. If he did that after Jan. 20, 2027, then Kamala Harris would be eligible to fill out his term and also get two terms on her own. If he resigned before then, she could be elected only once, making her a lame duck if she won in 2028. As Biden pointed out, sometimes fate intervenes (probably a reference to his son, Beau).

It is worth pointing out that the last time a president served a single term and then chose not to run for a second was 140 years ago (Rutherford B. Hayes). When presidents exit the White House, it's almost always because they have hit informal (before 1947) or formal term limits, or they have been defeated in their reelection bid, or they have died. It's not easy to give up power once you have it, particularly now that it's possible to let underlings do most or all of the heavy lifting, if necessary. The upshot is that if Biden retains his current level of popularity, it would be very unusual for him to step down.

In any event, until Biden makes a real announcement, one way or the other, in 2023, there won't be a lot of presidential campaign activity. Republican donors will be hesitant to fund Sen. Ted Cruz (R-TX) or Nikki Haley or anyone if they think Biden will run and crush the Republican candidate. Democratic wannabees aren't going to be able to hire consultants or pollsters, or anyone if those folks think the job will probably never materialize. So we may get a quiet period for 2 years or more. (V)

---

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