Senate page     Oct. 03

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New polls: NV
Dem pickups: OH PA
GOP pickups: NV

Gerrymandering May Not Be Fatal for the Democrats

As we and others have pointed out repeatedly, the president's party generally loses seats in the House in the midterms unless some major event upends the pattern, such as the opposition moving to impeach a popular president (1998) or a national catastrophe (2002). However, one new analysis suggests that the new round of gerrymandering may not be quite as devastating as some people feared (or hoped for). In particular, while the odds definitely favor the Republicans taking the House, it is not a done deal. An 80% chance or even a 90% chance, is not a 100% chance.

One way of looking at the newly drawn districts is how they lean. The calculation is tedious, but straightforward. With some work, it is possible to make a list of every precinct in each new district and then add up the votes for Joe Biden and for Donald Trump in the district. A district that Biden would have won is a district than leans Democratic and vice versa. With the new map, 209 House districts lean Republican and 226 lean Democratic. Of course, that is not the whole story. If 150 Republican-leaning districts are R+15 or more and 150 Democratic districts are D+6 or less, then it's hardly an even playing field. Nevertheless, Biden would have won 226 of the new districts, in some cases by a small amount, but in principle a district that would have gone for Biden is potentially winnable by the right Democrat with the right amount of money and the right campaign.

Now the next calculation: The number of districts that voted for the Democratic presidential candidate by a larger margin than the national popular vote in the prior election. This metric is similar to Charlie Cook's PVI, except that Cook uses the average of the two most recent presidential elections and weights the more recent of the two more heavily. The graph below shows how many districts are more Democratic than the most recent national popular vote for president:

House lean by year; usually there are less than 200 seats that lean more Democratic, which means there are about 230 that lean more Republican. Now, as in 1980, there are about 216 that lean more Democratic than the nation as a whole. So, it's almost half and half.

So by this measure, the current map is the fairest in 50 years (tied with 1980). Back in 2012, the Democrats were so far under water that it was hard to conceive of a Democratic-controlled House any time until the next census. Yet the Democrats did take the House back in 2018.

Also worth keeping in mind is that the Republicans' structural advantage in the House is roughly comparable to their structural advantage in the Electoral College, yet the Democrats have won the Electoral College five of the past 10 times.

Of course, races depend in candidate quality, opposition quality, money, incumbency, and other factors, including dumb luck. Still, this analysis suggests that while the Democrats are underdogs due to history, etc., they are not dead dogs. Or dead donkeys, perhaps.

For what it is worth, North Dakota has one House seat (because buffaloes don't count). The incumbent is Kelly Armstrong, who won the R+20 district by 32 points in 2020. So he will obviously crush 28-year-old Cara Mund (D)—whose previous victories include Miss Pre-Teen North Dakota, Miss Junior Teen North Dakota, Miss North Dakota and Miss America—right? Well, maybe not. An internal Democratic poll by DFM Research, which has a B/C rating from FiveThirtyEight, shows Armstrong ahead by only 4 points. Now, this poll may be total garbage, but if Armstrong wins by 32 points, DFM will have trouble finding new clients in the future, so we have to assume Armstrong's lead is not humongous. If North Dakota is even plausibly in play, a lot of swing districts could be seriously in play, too.

Another partisan poll just out is also a bit surprising. It is from ARW Strategies, a Republican outfit, for the Indiana Senate race between Sen. Todd Young (R-IN) and Tom McDermott (D). Young is at 39% and McDermott is at 37%. When partisan outfits put their thumbs on the scale, it is usually to make their horse look better than he or she really is. A near tie in a red state is surprising. Maybe something is going on that hasn't surfaced yet. But it is possible that the 24% undecideds are really Republicans who don't want to tell the pollster that.(V)

Democrats Are Worried about Holding the Senate

Now on to the Senate, where Democrats are doing what Democrats always do: worry. All the political handicappers now see the Democrats as (slight) favorites to hold the Senate based on that difficult-to-nail-down factor called "candidate quality" in TurtleWorld, not to mention the polls. But could the polls be off as they were in 2020 and 2016? We have harped on this point before and will continue harping until Nov. 8, but so many news stories on the topic keep cropping up, we think this harpage is well advised.

The latest one was in The Hill on Saturday. Everyone agrees that the Senate outlook is far brighter now than it was as late as May. But are the polls right? Sen. Chris Murphy (D-CT) said: "When have the polls been right in our favor in the past?" He was referring to FiveThirtyEight's projection that gives the Democrats a 7 in 10 chance of keeping the Senate majority. He then said he had very little confidence in them. The polling failure in the 2016 presidential race was historic, but in 2020, Sara Gideon had a huge lead over Sen. Susan Collins (R-ME) all year and still lost by 10 points. In 2018, then-senator Claire McCaskill was predicted to beat now-Sen. Josh Hawley (R-MO). Didn't happen. Also in 2018, Joe Donnelly (D) was expected to beat now-Sen. Mike Braun (R-IN) and that didn't happen either. So there have been serious polling misses in midterm elections in which Donald Trump was not on the ballot.

Sen. Debbie Stabenow (D-MI) expressed caution about the Michigan gubernatorial race, saying: "You never know." She also said of the Senate: "If the election were held today, I believe we would pick up seats." But she cautioned that spending by outside conservative groups in the final weeks of the campaign could change the picture.

All Democrats are rattled by the $1.6 billion donation that Barre Seid gave to a conservative group run by Leonard Leo, who has founded or led many conservative political groups, including being a long-time vice president of the Federalist Society. They know that Leo, a skillful operator, will dump millions of dollars of dark money in carefully selected races all over the country. Sen. Tim Kaine (D-VA) noted: "It's definitely a huge factor. Republican candidates don't really feel like they have to fundraise anymore. If you look, our candidates are outraising them but they don't care because they have the dark money and it's so massive." (V)

Was Ranked Choice Voting Fatal for Sarah Palin?

Many Republicans have grumbled about ranked choice voting because Democrat Mary Peltola beat Sarah Palin (R) and Nick Begich (R) in the special election to fill the vacant seat of the late Don Young. But it is really not true at all that RCV helps Democrats, or even that it helped Peltola win. In the nonpartisan primary, Palin got 30% of the vote and Begich got 26%, so Republicans got more votes than Democrats. Thus a Republican should have been seated, they argue.

But consider what would have happened if Alaska had not adopted its top-four runoff system and had regular partisan primaries, like most states. In the Republican primary, Palin would have beaten Begich and become the GOP nominee. The general election would then have pitted Palin against Peltola. But in the final round of RCV, the two contestants left were, in fact, Palin and Peltola, and Peltola won the head-to-head matchup. Palin's problem is that while she is popular with Republicans, Democrats and independents hate her, so winning a statewide general election against a Democrat is not easy for her. While a generic Republican can win in Alaska, Palin is not a generic Republican. She is a very unpopular Republican. Thus, absent the RCV system, Peltola would almost certainly have won anyway.

The race stunned almost everyone, but maybe it shouldn't have. Will Peltola be able to win again in November? If the House is close (see above)l, every seat will count, and a close race in Alaska could matter. So Politico decided to interview Alaska's leading pollster, Ivan Moore, about Alaska polling and elections. Here is a brief summary.

First, the RCV special election worked perfectly. They are not hard to run. Second, Peltola won because many Begich voters, who are obviously conservatives, preferred the Democrat to Palin and marked Peltola as their second choice, not Palin. In a straight Palin-Peltola election, they would have voted for Peltola. Moore believes that Palin's constant carping and telling Begich to get out of the race made the Begich voters really dislike her.

Third, Sen. Lisa Murkowski (R-AK) did better than expected in her primary because Trump-backed Kelly Tshibaka is so radioactive. The more people got to know her, the less they liked her. That is not good for a challenger. Fourth, Peltola and Murkowski have a kind of synergy. Both are backed by moderates, women, abortion rights supporters, and Native Alaskans. People who like one of them also like the other one. They will feed off each other's energy in November. It's more than a bit ironic that Murkowski will probably win the Senate seat in a red state even though she is absolutely toxic with many Republicans.

Fifth, the governor's race is also interesting. Gov. Mike Dunleavy (R-AK) will come in first. But who will come in second, Les Gara (D) or Bill Walker (I)? After the fourth-place finisher is eliminated, the battle for the final slot will be between Gara and Walker. Actually, it may not matter which of them wins because nearly all the loser's next choice vote will go to the other one and none will go to Dunleavy. The Gara and Walker voters will also almost all vote for Peltola and Murkowski. So the question really is: "Will Dunleavy get 50% + 1 right off the bat?" If he doesn't, he probably won't pick up enough votes in the second and third rounds to get a majority.

Sixth, in polling, by a 6-1 margin, progressives love RCV and by the same margin conservatives hate it. Progressives love it because it eliminates fringe candidates. Conservatives hate it because it eliminates fringe candidates. Conservatives would greatly prefer partisan primaries because then an extreme right-winger could get the GOP nomination and make it to the general election as the only Republican. RCV prevents this. They see this as a bug, not a feature. (V)

Democrats Are Already Struggling with the 2024 Primary Schedule

Democrats are struggling mightily with a problem they may even have to solve at all: Which states will go first in the 2024 presidential primaries. If Joe Biden decides to run for reelection, it is unlikely he will get a top-drawer challenger, so the Democratic primaries won't matter at all. If that happens, some Democrats might decide the Republican primaries are more interesting—especially if they feature Gov. Ron DeSantis (R-FL) against Donald Trump. However, if Biden decides his time is up, the Democrats will have a free-for-all, with wild and woolly primaries. In that case, the order of the states is hugely important.

The problem is the media. If a candidate loses Iowa badly, the media generally declares him or her dead and buried. But really, how does losing a nearly all-white, all-rural state mean a candidate is toast? It doesn't, but if the media says a candidate is dead, then the candidate is pretty dead. So there is a lot of discussion within the DNC about which states should go first, second, third, and fourth.

Pretty much all DNC members agree that there should be four early states (i.e., before Super Tuesday, the first Tuesday in March), that they should represent four different parts of the country, and that they should be small(ish) states so candidates capable of raising $50 million right off the bat don't win in a walk. Most DNC members are also unhappy with the role Iowa and New Hampshire now have, since they don't reflect the Democratic base at all. Then throw in the fact that Iowa completely botched it in 2020 and we still don't know who really won. The final nail in the coffin for these two is that they have mediocre track records for predicting the nominee.

Hence the pressure for picking new early states. The DNC's Rules and Bylaws Committee is working on that right now and will probably report back just after the midterms. Nevada and South Carolina are likely to make the top four because the former has a large Latino (and also union) population and the latter is heavily Black. Also, as a practical matter, candidates would greatly prefer traipsing around two warm states in the dead of winter rather than freezing their tails off in snowy Iowa and New Hampshire. Nevada temperatures range from 41F to 59F in January and there is virtually no rain and never snow in Clark County, where two-thirds of Nevadans live. In addition, these states have experience going early, which is a plus.

So the battle is really about the other two slots (and the order). Arizona and Georgia are newly important, but Arizona competes with Nevada and Georgia competes with South Carolina, so that puts them at a disadvantage. Michigan is making a big pitch to replace Iowa. It is a diverse state, not too big, and part of the critical Upper Midwest. Moving its primary would require the Republican-controlled Michigan state legislature to agree, but if Gov. Gretchen Whitmer (D-MI) is reelected, she could probably convince the legislators simply due to the economic benefit of all the attention the early states get. Minnesota would also like to replace Iowa, but it is a bit of a long shot.

Another idea that is kicking around is to make New Hampshire #1 but put Nevada on the same day for balance. The big problem here is that then candidates would have to campaign in two states 2,700 miles apart. There are no nonstop commercial flights between Las Vegas and anywhere in New Hampshire, so candidates would either have to change planes between them, which is a waste of time, fly from Boston, which is a waste of time, or charter planes constantly, which is a waste of money. For lesser-known candidates, this duo-election would probably be fatal. It seems to us like a very poor idea. Asian-American and Latino officials have coalesced behind having Nevada go first.

Another battle is that some DNC members want to replace South Carolina, which never votes for Democrats, with Georgia, a purple state that also has a large Black population. The trouble with that is that Rep. Jim Clyburn (D-SC) doesn't like the idea at all, and he personally saved Joe Biden's hide in 2020 and won't let Biden forget it.

Finally, in all states, the state legislature sets the primary dates, not the parties. Uncooperative state legislatures could scuttle the best-laid plans of humans and rodents. (V)

Dixon Goes Full Culture War--and Republicans Abandon Her

Some candidates change their whole approach, platform, and website after they have won their primary. Tudor Dixon (R), who is running for governor of Michigan, is not one of these. She is a woman of principle. She was Trumpy as hell during the primaries and is Trumpy as hell now. She is against having trans girls in girls' sports and promotes America First positions on everything. Whether this is a good idea in a general election in a swing state remains to be seen.

One additional problem Dixon has is that she is sharing the ballot with a proposition that would change Michigan's state Constitution to specifically state that abortion is legal in the state. After what happened in Kansas, this is likely to drive Democratic turnout, which is surely going to help Gretchen Whitmer.

In addition, Dixon has a money problem. Since the primary, the Democrats have spent $18 million on Whitmer's campaign and Republicans have spent $1 million on Dixon's. So it appears the Republicans have abandoned her as hopeless. It may be too late for Dixon to catch up, since early voting has already started in Michigan and once someone has already voted, a change of mind due to a TV ad is too late.

Dixon's latest ploy is to focus largely on education, following the playbook of Gov. Glenn Youngkin (R-VA). But that may not work everywhere. Youngkin ran against a somewhat sleazy candidate that even Democrats didn't love. And Dixon wants to copy Florida's "Don't say gay" law, which Youngkin didn't talk about much.

Dixon also has some self-inflicted wounds. She has joked about the attempted kidnapping of Whitmer by right-wing extremists. A lot of Michiganders don't find kidnapping people funny in the slightest.

A recent poll has 55% for Whitmer and 39% for Dixon. With numbers like that, neither the RNC nor the RGA is going to give Dixon a penny, so Whitmer, who is flush with cash, will dominate the airwaves until November. Donald Trump has been actively campaigning for Dixon, but if Dixon is squashed like a bug, it's not going to make him look great. (V)

Florida Republicans Are Pleading for Relief--After Voting against Funding FEMA

Congressional Republicans love to have it both ways. They vote against some bill the Democrats want and when it passes over their votes, are first in line to try to grab the benefits they opposed. There is a word for this. Hippopotamus? Hippocampus? Hyperventilate? Hypocretin? Something with an H. Can't remember.

The latest practitioners of this art are Sens. Rick Scott (R-FL) and Marco Rubio (R-FL). Last week, the Senate passed a stopgap bill to keep the government funded until after the midterms. It also included $19 billion for FEMA to help states with national disasters. Scott voted "no." Rubio skipped the vote altogether. Now both senators are actively lobbying the federal government to get FEMA to dump lots and lots of money on Florida to help rebuild it after Hurricane Ian flattened a substantial chunk of the state.

They aren't the only ones with that hippo thing. Ron DeSantis didn't get to vote on the bill with the FEMA funding because he is not in Congress. But he used to be. In 2012, when Superstorm Sandy hit New Jersey and New York, Democrats proposed a bill to help the victims there. DeSantis was then a congressman from Florida. He said he opposed the "put it on the credit card mentality" and voted "no," along with dozens of other Republican House members. Now he is pleading with FEMA for money for his damaged state. The Republican model seems to be: "When I need help, please supply it quickly, but when other people need help, no dice." (V)

The Supreme Court Is Back in the Saddle

Today the Supreme Court will meet for the first time since June and will feature newly installed Justice Ketanji Brown Jackson instead of Stephen Breyer. It is diverse court, with five men and four women. One of the women is a Latina, one is a Black Protestant, one is Jewish, and one is Catholic. There are two Black members now, Jackson and Clarence Thomas.

That aside, it is the most conservative Court in decades, possibly ever, and the six-member conservative majority is hellbent on changing America and they have the votes to do it. There are many hugely important cases on the docket this term.

The first case, to be taken up today, could undermine the Clean Water Act. It is about a married couple that built a house on protected wetlands without the permit the Clean Water Act requires. They claim the land is not connected closely enough with federally controlled waters, so the EPA has no business requiring a permit. In June, the Court gutted the Clean Air Act, so water is clearly next on the agenda.

Tomorrow the Court will hear a case that could gut the 1965 Voting Rights Act. That law prohibits racial gerrymandering, but Alabama did it anyway. Now the Court will get to decide if Congress even has the power to prohibit racial gerrymandering. Race will also be front and center on Oct. 31. Several conservative groups want the Court to ban affirmative action admissions at universities. Currently universities can consider race along with other factors when making admissions decisions. The plaintiffs say that race should not factor in at all, just academic merit and perhaps a few other factors like geographic distribution and the need to fill the vacancy for oboe player in the school orchestra. Chief Justice John Roberts' view on race is extremely simple and he has expressed it many times: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." That means race cannot be a factor in any decision, private or governmental, so by definition all affirmative action rules are unconstitutional. His vote is already set, even before he has started reading the briefs and he will presumably get the other five Republican appointees to join him. This might be a good opportunity for Democrats who voted for Jill Stein in 2016 because Hillary Clinton was not progressive enough to consider whether the perfect is the enemy of the good.

Another hot-button issue is religious beliefs vs. gay rights. Five years ago, the Court punted on a case in which a Christian baker refused to make a wedding cake for two men planning to get married. It sent the case back to the lower courts on a technicality. Now a related case has come up. Lorie Smith designs websites that glorify God's design for marriage. She checked with God and he said he frowns on same-sex marriages, so she doesn't want to design any websites for gay couples. But she was kind enough to put a note on her own website pointing gay couples to other designers who will work for them. However, Colorado law prohibits discrimination on the grounds of sexual orientation to the extent that a note saying effectively: "I won't work for same-sex couples but Joe over there in degenerate Denver will, so go ask him and leave me alone" is also a violation of the law. She has sued Colorado on the grounds that it is restricting her freedom of speech. Note that this case is really about religion but Smith has cleverly put it in terms of free speech, which may make it easier for the justices to support her because she is not claiming her religion is better than anyone else's religion. If she wins, the next case could be about a sign in a restaurant window: "Interracial couples are not welcome, so Clarence and Ginni, McDonalds is to the left and 3 blocks down the street." Where does it stop?

But clean air, clean water, and race, gay rights and free speech are small potatoes compared to the big case, Moore v. Harper. Art. I Sec. 4 of the Constitution reads:

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.

A case from North Carolina will test the "independent state legislature theory." This says that the state legislatures have total authority about the rules for elections and the governor, courts, and state Constitution play no role. If the North Carolina legislature decided to draw a map with wildly unequal districts that would be fine. A law saying that only propertied straight white Christians could vote would probably also be fine. Basically, the state legislatures would have free rein to run elections in nearly any manner they wished. Three justices (Samuel Alito, Clarence Thomas, and Neil Gorsuch) have already made it clear they support this theory. The consequence of a victory for this theory could be catastrophic.

It is doubtful that the founders really meant this. It is likely a question of sloppy wording. Most likely they meant something like "the state legislatures can determine how elections are run by passing appropriate laws," which would give the governor veto power and allow the courts to check the laws against the state Constitution. There is little evidence that they specifically meant to bypass the governor and the courts in this one situation.

Harvard Law School Professor Richard Lazarus said of the conservative wing of the Court: "They've spent a lot of time waiting for this majority to happen, and they don't plan to waste it." (V)

O'Rourke and Abbott Debate in Texas

On Friday, Gov, Greg Abbott (R-TX) and challenger Beto O'Rourke (D) met in a televised debate. O'Rourke said that it has been 18 weeks since kids were killed in a mass shooting in Uvalde and Abbott has done absolutely nothing to prevent the next one. Abbott said that he would not do anything to deny lawful gun owners their rights. O'Rourke did not back down. He said he would sign laws to raise the minimum age to buy a gun to 21 and implement universal background checks for gun purchases.

The Hill listed five takeaways from the debate:

Are debates useful? It can't hurt to have both candidates on stage at the same time so voters can have a good look at them, but not all debates are decisive. This one probably won't be. O'Rourke needed to land some heavy blows on Abbott to change the course of the campaign but he failed to do that. As a result, Abbott is still the heavy favorite. (V)

The Documents Case Is in the News Again

The Mar-a-Lago documents seem to have a life of their own and won't go away. The National Archives has now told the House Oversight Committee that there are still documents from the Trump administration that they don't have. Archives officials believe that Trump officials used nonofficial channels for official communications and they want those records, as required by the Presidential Records Act. A spokesman said: "While there is no easy way to establish absolute accountability, we do know that we do not have custody of everything we should." As usual, Trump is stonewalling.

The DoJ has said that White House Trade Adviser Peter Navarro used a private e-mail account to conduct official business. The Archives want those e-mails. Oversight Committee Chair Carolyn Maloney (D-NY) said on Saturday: "It is outrageous that these records remain unaccounted for 20 months after former President Trump left office. Former President Trump and his senior staff have shown an utter disregard for the rule of law and our national security by failing to return presidential records as the law requires." Will Trump now cough up the records? Don't hold your breath.

Another development in the documents case is that the DoJ has filed a case with the U.S. Court of Appeals for the 11th Circuit asking it to hurry up. The Department is complaining that the special master Judge Aileen Cannon appointed prevents it from accessing thousands of nonclassified records it needs for criminal investigations. Justice is asking the appeals court to quickly decide that there was no legal case for appointing a special master and it should get full access to all documents taken from Mar-a-Lago immediately. Consequently, it is asking for an expedited review and quick decision. (V)

Ted Deutsch Has Left the House

On Friday, the Democrats' tenuous hold on the House got even more tenuous as Rep. Ted Deutsch (D-FL) formally resigned from the House to go lead the American Jewish Committee.

As of right now, the breakdown in the House is 220D, 212R. If four Democrats defect on any bill and vote with the entire Republican caucus, the bill will go down. Speaker Nancy Pelosi (D-CA) has a black belt in cat herding, but this breakdown doesn't give her a lot of margin for error.

No special election will be held for the seat, which will remain empty until the person elected on Nov. 8 is seated on Jan. 3, 2023. The election in the district, which was FL-22 but is now FL-23, features state Rep. Jared Moskowitz (D) running against businessman Joe Budd (R). The race could be competitive since the district is D+5. The Democrats would have been much better off with a well-known incumbent running, but that is not to be. Meanwhile, it is fair to wonder why Deutsch couldn't hold on for 3 more months, since he was well aware that running for the House is a 2-year commitment, not a 1 year, 9 month commitment. Now, the folks who elected him will be unrepresented in the House for the rest of the term. (V)

Today's Senate Polls

Another poll that suggests Sen. Catherine Cortez Masto (D-NV) could be in trouble. She hasn't led in a poll since August. That said, most of the Laxalt-in-the-lead polls were conducted by houses with a Republican lean, or that are located in places far, far away from Nevada (like, say, Ohio). (Z)

State Democrat D % Republican R % Start End Pollster
Nevada Catherine Cortez Masto* 43% Adam Laxalt 45% Sep 20 Sep 29 OH Predictive Insights

* Denotes incumbent




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